[2023] KEELC 32 (KLR)
The court found that the judgment dated September 24, 2019 ordering transfer of the suit parcels to the plaintiffs had not been complied with by the defendant and the land registrar. The defendant, though served, failed to oppose the application or provide any explanation for non-compliance. The court held that...
Source-derived case information.
- Citation
- [2023] KEELC 32 (KLR)
- Parties
- Plaintiff: James Obara Keya; Plaintiff: Lawrence Omaga Otwere; Plaintiff: Charles Mogaka Otwere (Suing for and on behalf of the members of Mageche Progressive Society); Defendant: Stephen Rakita Kurende
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 276 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Amended Notice of Motion for Enforcement of Judgment
- Outcome
- Application allowed in part; prayers 1, 2, 3, and 4 granted; prayer 5 declined.
- Judges
- MN Gicheru
- Legal Topics
- Enforcement of Judgment, Transfer of Land, Land Registration, Contempt of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Obara Keya
Plaintiff
Lawrence Omaga Otwere
Plaintiff
Charles Mogaka Otwere (Suing for and on behalf of the members of Mageche Progressive Society)
Plaintiff
Stephen Rakita Kurende
Defendant
Procedural Posture
Environment and Land Case / Ruling on Amended Notice of Motion for Enforcement of Judgment
Legal Issues
- 1 Whether the court should dispense with land control board consent for transfer of the suit parcels.
- 2 Whether the court should order transfer of the suit parcels to the plaintiffs as per the judgment.
- 3 Whether entries in the land register after the judgment date should be cancelled.
Ratio Decidendi
The court found that the judgment dated September 24, 2019 ordering transfer of the suit parcels to the plaintiffs had not been complied with by the defendant and the land registrar. The defendant, though served, failed to oppose the application or provide any explanation for non-compliance. The court held that enforcement of its judgment was mandatory and that the orders sought in prayers 1 to 4 of the amended notice of motion were merited to give effect to the judgment. However, the court declined to grant the committal order against the land registrar for contempt due to lack of evidence of personal service and because such an order would be premature without clear proof of...
Court Disposition
Application allowed in part; prayers 1, 2, 3, and 4 granted; prayer 5 declined.
Orders
- Land control board consent dispensed with for transfer of Kajiado/Onyore/11557 and 11559.
- Transfer of the suit parcels to the plaintiffs forthwith.
Full Case Text
Judgment text and source record
25 paragraphs
Keya & 2 others v Kurende (Environment & Land Case 276 of 2017) [2023] KEELC 32 (KLR) (17 January 2023) (Ruling)
Neutral citation: [2023] KEELC 32 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 276 of 2017
MN Gicheru, J
January 17, 2023
(formerly Machakos ELC Case No 145 of 2012)
Between
James Obara Keya
1st Plaintiff
Lawrence Omaga Otwere
2nd Plaintiff
Charles Mogaka Otwere (Suing for and on behalf of the members of Mageche Progressive Society)
3rd Plaintiff
and
Stephen Rakita Kurende
Defendant
Ruling
1. This ruling is on the amended notice of motion dated January 26, 2022. The motion which is under sections 1A, 1B and 3A of the Civil Procedure Act, order 51, rule 1 Civil Procedure Rules, section 80(1) of the Land Registration Act 2012, section 5 (b) of the contempt of Court Act, 2016 and all other enabling provision of the law seeks the following six orders.i.The court dispenses with the land control board consent as pertains to the transfer of Kajiado/Onyore/11557 and 11559 (suit parcels).ii.Transfer of the suit parcels to the plaintiffs forthwith.iii.Cancellation of all entries in the register of the defendant’s title in respect of the suit parcels effected after the date of judgment, that is to say, September 24, 2019. iv.A declaration that the transfers of the suit parcels to any third parties after the date of judgment as irregular, null and void.v.An order committing the district land registrar Ngong, Ms Grace Mumo and the defendant to civil jail for six months for deliberately disobeying and contravening the judgment dated September 24, 2019. vi.Any other relief that the court deems fit to grant for the enforcement of the judgment and decree.
2. The application is supported by eleven grounds, an affidavit sworn by the first plaintiff dated January 26, 2022 and twelve annexures. The gist of the above material is that even though the court ordered that the suit land be transferred to the plaintiffs, the land registrar and the defendant have failed to effect the court judgment and decree and only the orders sought herein will give effect to the said judgment and decree.
3. The application though served on the defendant is unopposed by the said defendant. I note that it is not served on the intended land registrar Grace Mumo.
4. I have carefully considered the application in its entirety and I find that it has merit in some of the aspects for the following reasons.1. Firstly, the judgment of the court dated September 24, 2019 must be enforced in all its aspects.2. Secondly, the defendant though served has not responded to the application as to any difficulties he may be facing in effecting the judgment of the court.3. Thirdly, as regards prayer 5, there is no evidence of personal service on Grace Mumo, land registrar and secondly, it is premature to order committal of the officer to civil jail unless there is clear evidence of disobedience of the court order.4. For the above stated reasons, I allow the notice of motion dated January 26, 2022 in terms of prayers 1, 2, 3 and 4.
5. It so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 17TH DAY OF JANUARY, 2023. M.N. GICHERUJUDGE