[2015] KEELC 390 (KLR)
The court found that the plaintiff had already obtained judgment entitling him to 2 acres of the suit property by way of adverse possession, as affirmed by the arbitration award and subsequent court judgment. The defendants had refused to execute the necessary documents to effectuate the transfer, and there was no...
Source-derived case information.
- Citation
- [2015] KEELC 390 (KLR)
- Parties
- Plaintiff: Kibilio Chumo; Defendant: Paul Cheruiyot Koske & 3 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 79 of 2001
- Procedural Posture
- Originating Summons / Ruling on Post Judgment Application for Execution
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Adverse Possession, Execution of Decree, Mutation and Transfer of Land, Arbitration Award Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kibilio Chumo
Plaintiff
Paul Cheruiyot Koske & 3 Others
Defendant
Procedural Posture
Originating Summons / Ruling on Post Judgment Application for Execution
Legal Issues
- 1 Whether the Deputy Registrar should be ordered to execute mutation and transfer forms to effect the decree in favour of the plaintiff.
- 2 Whether the defendants' refusal or neglect to execute the necessary documents justifies court intervention.
Ratio Decidendi
The court found that the plaintiff had already obtained judgment entitling him to 2 acres of the suit property by way of adverse possession, as affirmed by the arbitration award and subsequent court judgment. The defendants had refused to execute the necessary documents to effectuate the transfer, and there was no evidence of an appeal or stay of execution. In these circumstances, to give effect to the decree and prevent frustration of the court's judgment, the court ordered the Deputy Registrar to execute all forms required to excise and transfer the 2 acres to the plaintiff. The defendants were ordered to bear the costs of the application.
Court Disposition
application allowed
Orders
- The Deputy Registrar is ordered to execute all forms required to have 2 acres excised from land parcel Kericho/Kipchimchim/1011 and transferred to the plaintiff.
- The defendants shall bear the costs of this application.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT KERICHO
E.L. CASE NO. 79 OF 2001
KIBILIO CHUMO--------------------------------------------------------------------------PLAINTIFF
VERSUS
PAUL CHERUIYOT KOSKE & 3 OTHERS----------------------------------DEFENDANTS
R U L I N G
(Application to have Deputy Registrar execute forms to effect the decree; application allowed)
This suit was commenced by way of Originating Summons filed on 11 October 2001. The claim was one of adverse possession for 2. 5 acres out of the land parcel Kericho/Kipchimchim/1011. The suit was defended and by consent referred to arbitration. The arbitrator's award is dated 24 April 2006. In it, the arbitrator was satisfied that the plaintiff has proved that he has acquired a portion of land measuring about 2 acres out of the suit property by way of adverse possession. There followed an application to set aside the award but the same was dismissed by An'gawa L.J on 5 November 2009. In essence the award was affirmed as the judgment of the court. A notice of appeal was filed on 6 November 2009 but I have not seen any evidence of an appeal having been filed.
Through an application dated 16 October 2014, the plaintiff seeks orders to have the Deputy Registrar ordered to execute the mutation forms and transfer 2 acres out of the suit property to the plaintiff. The reason given is that the defendants have refused or neglected to execute the necessary forms to have the 2 acres excised from the suit property and transferred to the plaintiff.
The defendants did not file any replying affidavit to oppose the motion. However, Mr. Ong'anyi, learned counsel for the defendants sought an adjournment at the hearing of the motion which I denied. Mr. Caleb Koech for the applicant urged me to allow the application.
I have considered the same. The plaintiff already has judgment in his favour. It was ordered that the plaintiff is entitled to 2 acres of the suit property. The defendants have refused to transfer this portion to the plaintiff. As far as I can see, no appeal has been filed. Neither is there any order staying the execution of the decree. So that the decree may be effected, I do allow the application and order the Deputy Registrar to execute all forms required to have the 2 acres excised from the land parcel Kericho/Kipchimchim/1011, and transferred to the plaintiff. The defendants shall bear the costs of this application.
It is so ordered.
DATED, DELIVERED & SIGNED AT KERICHO THIS 26TH DAY OF JUNE 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
In the presence of:
Mr Caleb Koech for plaintiff/applicant.
N/A for M/s S.G. Ong'anyi for defendants/respondents.
Court Assistant F. Juma.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT.