[2018] KEHC 2199 (KLR)
The court held that the applicant is only entitled to 0.375 acres from land parcel No.124 SOY SAMBU SCHEME as per the original judgment, which allowed her claim to that extent and no more. The application to have the Deputy Registrar execute transfer forms was allowed only to the extent of 0.375 acres, not the 1.175...
Source-derived case information.
- Citation
- [2018] KEHC 2199 (KLR)
- Parties
- Applicant: Margaret Nanyama Wanyama; Applicant: Kennedy W. Wanyama; Respondent: Vincent Wekesa Barasa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 26 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application for Execution
- Outcome
- Application allowed in part.
- Legal Topics
- Land Transfer, Specific Performance, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Nanyama Wanyama
Applicant
Kennedy W. Wanyama
Applicant
Vincent Wekesa Barasa
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application for Execution
Legal Issues
- 1 Whether the applicant is entitled to have the Deputy Registrar execute transfer forms for 0.375 acres from land parcel No.124 SOY SAMBU SCHEME as per the judgment.
- 2 Whether the applicant can seek transfer of 1.175 acres contrary to the judgment.
Ratio Decidendi
The court held that the applicant is only entitled to 0.375 acres from land parcel No.124 SOY SAMBU SCHEME as per the original judgment, which allowed her claim to that extent and no more. The application to have the Deputy Registrar execute transfer forms was allowed only to the extent of 0.375 acres, not the 1.175 acres sought in the application, as the court cannot grant more than what was decreed in the judgment. The court emphasized that execution proceedings cannot be used to vary or enlarge the judgment, and the applicant's entitlement is strictly limited to what was previously adjudicated.
Court Disposition
Application allowed in part.
Orders
- Deputy Registrar to sign transfer forms on behalf of the defendant to transfer 0.375 acres from land parcel No.124 SOY SAMBU SCHEME to the applicant.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
ENVIRONMENT & LAND CASE NO.26 OF 2014
MARGARET NANYAMA WANYAMA……………..1ST APPLICANT
KENNEDY W. WANYAMA……………….…...…….2ND APPLICANT
VERSUS
VINCENT WEKESA BARASA…………...................….RESPONDENT
RULING
The plaintiff / Applicant herein filed this suit on 7th February 2014 seeking the main order that they be awarded 0. 375 acres out of plot No.124 SOY SAMBU SCHEME.
The defendants did not enter any defence and on 7th July 2015, the late MUKUNYA J delivered this short judgment which I shall reproduce as it is relevant to the application now before me:
“JUDGEMENT
The plaintiffs claim in the plaint claim (sic) is for 0. 375 acres to make 1½ acres a per agreement from land parcel No. Plot No. 124 SOY SAMBU SCHEME. There is no defence filed to this claim.
The defendants who are served did not attend.
There is no opposition to this claim at all. The same is allowed as prayed in the plaint. Each party should bear its own costs.
MUKUNYA, J
7th June 2015. ”
Arising out of that judgment, the 1st plaintiff MARGARET NANYAMA WANYAMA has filed a Notice of Motion dated 16th July 2018 seeking the main prayer that this Court do authorize the Deputy Registrar to sign the relevant transfer forms to transfer 1. 175 acres from land parcel No.124 to the Plaintiff / Applicant.
The application is not opposed.
I have considered the application and looked at the judgement of the late MUKUNYA J which I have referred to above.
It is clear from that judgement, from which no appeal was filed, that the Plaintiff / Applicant is entitled to 0. 375 acres from land parcel No.124 SOY SAMBU SCHEME to make her share 1½ acres. My understanding of the judgement is that she already owns a portion from the suit land but what she desires is 0. 375 acres so that her portion is increased to 1½ acres. She cannot therefore now claim that a portion measuring 1. 175 acres be transferred to her as per her application.
In the circumstances, the application dated 16th July 2018 is hereby allowed but only to the extent that the Deputy Registrar signs transfer forms on behalf of the Defendant to transfer to the Plaintiff / Applicant a portion measuring 0. 375 acres from land parcel No. 124 SOY SAMBU SCHEME.
No order as to costs.
BOAZ N. OLAO
JUDGE
22ND NOVEMBER 2018
Ruling dated, delivered and signed in open Court this 22nd day of November 2018.
1st Applicant – present
2nd Applicant – Absent
Respondent – Absent
BOAZ N. OLAO
JUDGE
22ND NOVEMBER 2018