[2023] KEELC 22300 (KLR)
The court found that the defendant's unexplained refusal to produce the original title deed, despite a clear court decree and repeated notices, constituted frustration of the execution process. The Land Registration Act empowers the Land Registrar to dispense with the production of the original title in appropriate...
Source-derived case information.
- Citation
- [2023] KEELC 22300 (KLR)
- Parties
- Plaintiff: Pauline Rigiri Muthiora (Suing as the legal representative and administratix of the Estate of Genaro Muthiora M'Mbirithi – Deceased); Defendant: Zachary Muriki Joseph (Sued as the legal representative and administrator of the Estate of Joseph M'Ikunyua M'Iringo (Deceased))
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 241 of 2017
- Procedural Posture
- Environment and Land Case / Ruling on Post Judgment Application for Execution
- Outcome
- Application allowed with orders as specified.
- Judges
- CK Nzili
- Legal Topics
- Execution of Decree, Land Title Production, Land Registration Act, Court Orders on Land, Compliance With Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pauline Rigiri Muthiora (Suing as the legal representative and administratix of the Estate of Genaro Muthiora M'Mbirithi – Deceased)
Plaintiff
Zachary Muriki Joseph (Sued as the legal representative and administrator of the Estate of Joseph M'Ikunyua M'Iringo (Deceased))
Defendant
Procedural Posture
Environment and Land Case / Ruling on Post Judgment Application for Execution
Legal Issues
- 1 Whether the Land Registrar can dispense with the production of the original title deed for LR No. Nyaki/Mulathankari/745 to facilitate execution of the court decree.
- 2 Whether the defendant/respondent's failure to produce the original title deed justifies court intervention to enable subdivision and transfer as decreed.
Ratio Decidendi
The court found that the defendant's unexplained refusal to produce the original title deed, despite a clear court decree and repeated notices, constituted frustration of the execution process. The Land Registration Act empowers the Land Registrar to dispense with the production of the original title in appropriate circumstances. The court held that, upon the Land Registrar issuing a summons to the defendant, the defendant must surrender the original title within seven days of personal service. If the defendant fails to comply, the Land Registrar is at liberty to proceed without the original title to effect the subdivision and transfer as decreed. The respondent is to bear the costs of...
Court Disposition
Application allowed with orders as specified.
Orders
- The defendant/respondent shall surrender the original title deed for LR No. Nyaki/Mulathankari/745 within seven days of personal service with a summons from the Land Registrar Meru Central.
- In default of surrender, the Land Registrar is at liberty to dispense with the production of the original title deed to facilitate the subdivision and transfer as decreed.
Full Case Text
Judgment text and source record
22 paragraphs
Muthiora (Suing as the legal representative and administratix of the Estate of Genaro Muthiora M'Mbirithi – Deceased) v Joseph (Sued as the legal representative and administrator of the Estate of Joseph M'Ikunyua M'Iringo (Deceased) (Environment & Land Case 241 of 2017) [2023] KEELC 22300 (KLR) (13 December 2023) (Ruling)
Neutral citation: [2023] KEELC 22300 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment & Land Case 241 of 2017
CK Nzili, J
December 13, 2023
Between
Pauline Rigiri Muthiora (Suing As The Legal Representative And Administratix Of The Estate Of Genaro Muthiora M'Mbirithi – Deceased)
Plaintiff
and
Zachary Muriki Joseph (Sued As The Legal Representative And Administrator Of The Estate Of Joseph M'Ikunyua M'Iringo (Deceased)
Defendant
Ruling
1. The court is asked to issue an order that the Land Registrar Meru Central dispenses with the production of the original title deed for LR No. Nyaki/Mulathankari/745 to facilitate the excision ¼ of an acre from the title as decreed in this suit.
2. The reasons are contained in the affidavit of Pauline Rigiri Muthiora, the decree-holder, sworn on 30. 9.2023. It is averred that the court delivered a judgment on 25. 1.2023. That defendant/respondent possesses the original title deed but has refused or declined to submit it despite several letters requesting for it. The copy of records, letters, and decree marked as PRM 1 -3, respectively, to effect the decree, and for the end of justice to be met, the applicant urges the court to allow the application.
3. The application was served upon the defendant/ respondent's advocates on record on 17. 10. 2023. a return of service sworn by Kiogora Arithi's advocate was filed on 16. 11. 2023.
4. By a judgment dated 25. 1.2023, the court decreed ¼ an acre of LR No. Nyaki/Mulathankari/745 to the plaintiff/applicant. A further order was made for the defendant to execute transfer documents in favor of the plaintiff within two months in default for the court's Deputy Registrar to sign the document.
5. The plaintiff/applicant returned to this court after almost 11 months, claiming that the defendant/respondent had frustrated the execution process. Notices to comply have been served upon the defendant's last known contact.
6. Section 31 of the Land Registration Act provides that a land registrar may dispense with the production of an original certificate of title or lease on registration of any dealing with the land for cancellation. Section 14 there at provides that a summons may be issued to any person to produce any instrument certificate or other document or plan relating to the land. A court order may not be necessary for the land registrar to exercise his powers.
7. The reluctance by the defendant/respondent to produce the original title has not been explained. I have not seen any communication from the Land Registrar rejecting the sub-divisions or calling for the production of the original title deed. Be that as it may, I order that the defendant/respondent, upon issuance of the summons by the Land Registrar Meru Central, shall surrender the original title deed within seven days after personal service with the summons in default of which the Land Registrar shall be at liberty to dispense with the production of the original title. The respondent shall bear the costs of the exercise. Orders accordingly.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 13TH DAY OF DECEMBER 2023In presence ofMiss Mugo for the applicantHON. CK NZILIJUDGE