[2021] KEELC 978 (KLR)
The court found that the defendants had failed to comply with the judgment and decree requiring subdivision and transfer of the suit land into two equal portions between the plaintiffs and defendants. There was no justification for non-compliance since 2019, and the court reaffirmed that its orders must be respected...
Source-derived case information.
- Citation
- [2021] KEELC 978 (KLR)
- Parties
- Plaintiff: Michael Boro Warui (Suing as personal representative of the estate of Joseph Warui Mwangi); Plaintiff: Loise Wacheke Boro; Plaintiff: James Kimani Boro; Defendant: Grace Nyambura Mbugua; Defendant: Amos Ndung’u Mbugua; Defendant: Simon Kagiri Mbugua; Defendant: Felix Kimani Mbugua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 558 of 2007
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Enforcement Application
- Outcome
- application allowed
- Judges
- LN Mbugua
- Legal Topics
- Trust Land, Land Registration, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Boro Warui (Suing as personal representative of the estate of Joseph Warui Mwangi)
Plaintiff
Loise Wacheke Boro
Plaintiff
James Kimani Boro
Plaintiff
Grace Nyambura Mbugua
Defendant
Amos Ndung’u Mbugua
Defendant
Simon Kagiri Mbugua
Defendant
Felix Kimani Mbugua
Defendant
Procedural Posture
Notice of Motion / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the defendants have failed to comply with the court decree for subdivision and transfer of land as ordered in the judgment of 24th January 2019.
- 2 Whether the court should grant orders to facilitate enforcement of the judgment, including authorising a government survey, the Deputy Registrar to sign transfer forms, and police security.
Ratio Decidendi
The court found that the defendants had failed to comply with the judgment and decree requiring subdivision and transfer of the suit land into two equal portions between the plaintiffs and defendants. There was no justification for non-compliance since 2019, and the court reaffirmed that its orders must be respected and enforced. The court therefore allowed the plaintiffs' application, granting orders for a government survey to subdivide the land, authorisation for the Deputy Registrar to sign transfer forms on behalf of the defendants, and police security for the surveyor. The defendants were condemned to pay the costs of the application, ensuring the plaintiffs could enjoy the fruits of...
Court Disposition
application allowed
Orders
- A government survey is to enter land reference GITHUNGURI/KIARIA/2232 and subdivide it into two equal portions to be registered in the names of the plaintiffs on one part and the defendants on the other part as previously ordered.
- The Deputy Registrar is authorised to sign transfer forms and any other relevant forms on behalf of the defendants to effect transfer of the subdivided portions to the plaintiffs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC SUIT NO. 558 OF 2007
MICHAEL BORO WARUI (Suing as personal
representative of the estate of
JOSEPH WARUI MWANGI).......................................................................1ST PLAINTIFF
LOISE WACHEKE BORO........................................................................2ND PLAINTIFF
JAMES KIMANI BORO...........................................................................3RD PLAINTIFF
VERSUS
GRACE NYAMBURA MBUGUA.........................................................1ST DEFENDANT
AMOS NDUNG’U MBUGUA...........................................................…2ND DEFENDANT
SIMON KAGIRI MBUGUA.................................................................3RD DEFENDANT
FELIX KIMANI MBUGUA.................................................................4TH DEFENDANT
RULING
1. Coming up for ruling is a Notice of Motion application dated 15th September 2020 by the plaintiffs, seeking the following orders:
i. Spent.
ii. THAT the Honourable Court do make order directing a Government survey to enter land reference GITHUNGURI/KIARIA/2232 and subdivide the same into two equal portions to be registered in the names of Micheal Boro Warui, Loise Wacheke Boro, and James Kimani Boro, on one part and Grace Nyambura Mbugua, Amos Ndungu Mbugua, Simon Kagiri Mbugua and Felix Kimani Mbugua on the other part as ordered by this court on 24th January 2019.
iii. THAT the Deputy Registrar of this Court be allowed to sign transfer forms and any other relevant forms on behalf of Defendants to effect transfer of the portions subdivided to the Plaintiffs.
iv. THAT this court issue an order authorising the OCS Githunguri Police Station to provide security to the surveyor to enable him enter into land Ref. GITHUNGURI/KIARIA/2232 to comply with the Court decree herein.
v. THAT the costs of this Application be provided for.
2. This application is supported by the 1st plaintiff’s affidavit dated 15th September 2020 who avers that the defendants have failed to comply with the court decree issued on 15th February 2019 which emanated from the judgement of this court delivered on 24th January 2019. It is also stated that the respondents have failed to allow the surveyor access to the suit land for subdivision purposes as ordered by the court.
3. No responses were filed in respect of the current application despite there being service as per the affidavit of service dated 27th May 2021 filed in court.
4. To aid in arriving at a decision, this court made reference to the judgement by Lady Justice Jane Onyango which was delivered by Justice Eboso on 24th February 2019 which ordered as follows:
a) A declaration is hereby issued that the parcel of land originally known as Githunguri/ Kiaria/687 registered in favour of the deceased Mbugua Mwenja Kagiri and subsequently subdivided into Githunguri/Kiaria/1969 and Githunguri/ Kiaria/1970 registered in favour of the defendants and which was further consolidated into Githunguri/Kiaria/2322 registered in the name of the defendants was so registered in trust and for the benefit of the defendants and the plaintiffs.
b) That all the subdivisions and subsequent transfer and consolidation of the suit premises formerly known as Githunguri/Kiaria/687 are hereby cancelled.
c) That the District Land Registrar in custody of the subject registries do forthwith proceed to rectify the registers by cancelling the title to the parcel of land currently known as Githunguri/Kiaria/2322 and subdividing it into two equal proportions to be registered in the names of Michael Boro Warui, Loise Wacheke Boro and James Kimani Boro on one part and Grace Nyambura Mbugua, Amos Ndungu Mbugua, Simon Kagiri Mbugua and Felix Kimani Mbugua on the other part.
d) The defendants shall bear costs of this suit.
5. This court finds that there is no evidence or justification why the court orders through the judgement and subsequent decree have not been effected since year 2019. It has been stated time and again that court orders are not given in vain and should be respected, see- Olive Mwihaki Mugenda & another v Okiya Omtata Okoiti & 4 others [2016] Eklr.As such, the plaintiffs have a right to enjoy the fruits of their judgement.
6. In the final analysis, I hereby allow the application dated 15. 9.2020 and defendants are condemned to pay costs of the application.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 17TH DAY OF NOVEMBER, 2021 THROUGH MICROSOFT TEAMS.
LUCY N. MBUGUA
JUDGE
In the presence of:-
James Kimani present in Person
Micheal Baro present in Person
Court Assistant: Edel Barasa