[2025] KEELC 1034 (KLR)
The court held that the applicants have a vested right to the consent order adopted on 15th November 2021, which has neither been appealed, stayed, varied, nor set aside. In the absence of any response from the defendant and in the interest of justice, the court found the application meritorious. The court relied on...
Source-derived case information.
- Citation
- [2025] KEELC 1034 (KLR)
- Parties
- Plaintiff: Philip Kiprop Kitur; Plaintiff: Cheruiyot Kitur; Defendant: Land Registrar, Nandi County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kapsabet
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 100 of 2021
- Procedural Posture
- Environment and Land Case / Ruling on Ex Parte Notice of Motion for Execution of Consent Order
- Outcome
- Application allowed in terms of orders 2 and 3 as sought.
- Judges
- GMA Ongondo
- Legal Topics
- Execution of Consent Orders, Land Subdivision, Survey Orders, Court Decrees, Possession and Occupation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Kiprop Kitur
Plaintiff
Cheruiyot Kitur
Plaintiff
Land Registrar, Nandi County
Defendant
Procedural Posture
Environment and Land Case / Ruling on Ex Parte Notice of Motion for Execution of Consent Order
Legal Issues
- 1 Whether the applicants are entitled to execution of the consent order for subdivision and transmission of land parcels.
- 2 Whether the County Surveyor and OCS Mosoriot Police Station should be directed to facilitate the subdivision and provide security.
- 3 Whether the absence of a response or stay affects the applicants' right to execution.
Ratio Decidendi
The court held that the applicants have a vested right to the consent order adopted on 15th November 2021, which has neither been appealed, stayed, varied, nor set aside. In the absence of any response from the defendant and in the interest of justice, the court found the application meritorious. The court relied on Section 34 of the Civil Procedure Act and the principle that consent orders are binding unless set aside. Accordingly, the court allowed the application, granting orders for the County Surveyor to subdivide the land as specified and for the OCS Mosoriot Police Station to provide security during the process, affirming the applicants' possession and occupation of the land.
Court Disposition
Application allowed in terms of orders 2 and 3 as sought.
Orders
- The County Surveyor, Nandi County is ordered and directed to survey and subdivide parcel Nandi/mutwot/210 into three portions of 16 Acres, 13.5 Acres, and 10 Acres for transmission to Philip Kiprop Kitur, Kitur Arap Misoi (deceased), and Cheruiyot Kitur respectively.
- An order is issued directing the OCS, Mosoriot Police Station to provide security during the survey and subdivision of the land and to affirm the applicants' possession and occupation during the exercise.
Full Case Text
Judgment text and source record
29 paragraphs
Kitur & another v Land Registrar, Nandi County (Environment & Land Case 100 of 2021) [2025] KEELC 1034 (KLR) (4 March 2025) (Ruling)
Neutral citation: [2025] KEELC 1034 (KLR)
Republic of Kenya
In the Environment and Land Court at Kapsabet
Environment & Land Case 100 of 2021
GMA Ongondo, J
March 4, 2025
Between
Philip Kiprop Kitur
1st Plaintiff
Cheruiyot Kitur
2nd Plaintiff
and
Land Registrar, Nandi County
Defendant
Ruling
1. By an Ex Parte Notice of Motion dated 13th October 2023 under, inter alia, section 1A, 1B, 3 and 3B of the Civil Procedure Act Chapter 21 Laws of Kenya, the plaintiff/applicants through Duncan Tallam and Company Advocates are seeking the following orders;a.Spent.b.That , the County Surveyor, Nandi County be ordered and directed to survey so as to sub-divide parcel Nandi/mutwot/210 into three (3) portion of 16 Ares, 13. 5 Acres and 10 Acres for transmission to Philip Kiprop Kitur, Kitur Arap Misoi (now Deceased) And Cheruiyot Kitur respectively.c.That an Order do issue directing OCS, Mosoriot Police Station within whose area of jurisdiction the suit land is situate to provide security during the survey and sub-division of the land and affirm the Applicants possession and occupation during the exercised.Costs of this application be provided for.
2. The applicants assert that the court adopted a consent on 15th November 2021 by the parties as a valid court order. That there is no appeal and no application for stay is pending against the order to be executed in the interest of justice.
3. The defendant/respondent was duly served with the application as revealed in the affidavit of service sworn on 3rd March 2025 herein.
4. There is no response to the application.
5. So, is the instant application meritorious?
6. The applicants intend to have the consent order executed as disclosed in the application. Section 34 of the Civil Procedure Act Chapter 21 Laws of Kenya relates to questions to be determined by court in execution of a decree.
7. The applicants have a vested right to the consent order which ought to be effectual; see also Shahmad-vs-Shamji Bros and another (1957) EA 438.
8. In the instant case, the consent order has neither been varied nor set aside.
9. By the consent order and in the interest of justice, the applicants are entitled to the principal prayers in the application.
10. Accordingly, the application is hereby allowed in terms of orders 2 and 3 sought therein as set out in paragraph 1 (b) and (c) hereinabove.
11. Costs of the application be in the cause.
12. It is so ordered.
DATED AND DELIVERED AT KAPSABET THIS 4THDAY OF MARCH 2025. G M A ONGONDOJUDGEPRESENTMs Tonui instructed by Mr Duncan Tallam learned counsel for the applicants/plaintiffsWalter, court assistant