[2023] KEELC 17706 (KLR)
The court found that it has the statutory mandate to enforce its decrees, including directing the provision of security to the Land Registrar for execution of the decree. Given the open hostility expressed by the respondents and the need to ensure the safety and effectiveness of the execution process, the...
Source-derived case information.
- Citation
- [2023] KEELC 17706 (KLR)
- Parties
- Plaintiff: Isaya Kiriinya Mwitari (Legal Representative of the Estate of M’Ikunyua M’Mwongera - Deceased); Defendant: Njeri Wa Chege; Defendant: John Kimani Chege; Defendant: Richard Kamau Chege; Defendant: Wanjiru Chege
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 35 of 2012
- Procedural Posture
- Environment and Land Case / Ruling on Application for Provision of Security During Execution of Decree
- Outcome
- Application allowed with conditions.
- Judges
- CK Nzili
- Legal Topics
- Execution of Decree, Land Registrar Powers, Security for Execution, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaya Kiriinya Mwitari (Legal Representative of the Estate of M’Ikunyua M’Mwongera - Deceased)
Plaintiff
Njeri Wa Chege
Defendant
John Kimani Chege
Defendant
Richard Kamau Chege
Defendant
Wanjiru Chege
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application for Provision of Security During Execution of Decree
Legal Issues
- 1 Whether the court should order the OCS Meru Police Station to provide security to the Land Registrar during execution of the court decree.
- 2 Whether the rights of the respondents (judgment debtors) are protected during execution given the age of the decree and lack of amendment to reflect the legal representative.
Ratio Decidendi
The court found that it has the statutory mandate to enforce its decrees, including directing the provision of security to the Land Registrar for execution of the decree. Given the open hostility expressed by the respondents and the need to ensure the safety and effectiveness of the execution process, the application was merited. However, the court emphasized that the rights of the respondents must be protected, particularly their entitlement to notice to show cause since the decree is over one year old. The court therefore allowed the application, directing the OCS Meru Police Station to provide security to the Land Registrar on the date set for execution, provided that proper notice is...
Court Disposition
Application allowed with conditions.
Orders
- The OCS Meru Police Station is directed to provide security to the Land Registrar on the date set and served upon the respondents for the visit to LR No Nyaki/Kithoka/1697 and 1671.
- Execution to proceed in line with Sections 18-21 of the Land Registration Act, provided notice to show cause is served on the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
Mwitari (Legal Representative of the Estate of M’Ikunyua M’Mwongera - Deceased) v Chege & 3 others (Environment & Land Case 35 of 2012) [2023] KEELC 17706 (KLR) (5 June 2023) (Ruling)
Neutral citation: [2023] KEELC 17706 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment & Land Case 35 of 2012
CK Nzili, J
June 5, 2023
Between
Isaya Kiriinya Mwitari (The Legal Representative of the Estate of M’Ikunyua M’Mwongera - Deceased)
Plaintiff
and
Njeri Wa Chege
1st Defendant
John Kimani Chege
2nd Defendant
Richard Kamau Chege
3rd Defendant
Wanjiru Chege
4th Defendant
Ruling
1. The court is asked by an application dated March 14, 2023 to allow the OCS Meru Police Station to provide security to the Land Registrar Meru in executing the decree of this court issued on May 2, 2014, since the respondents have expressed open hostility to its implementation.
2. The application is supported by an affidavit of Isaya sworn on March 14, 2023. He stated that he is the personal legal representative of the decree-holder who passed on July 21, 2022 which decree directed the land registrar to visit and fix beacons between LR No Nyaki/Kithoka/1697 and 1671. Further, the applicant stated that the deceased had made various attempts to have the land registrar carry out the exercise but required the provision of security.
3. In a replying affidavit sworn by Wanjiru Chege, the 4th respondent on May 222023, she deposed that the judgment sought to be executed was exparte, there was no service upon the defendants with summons to enter appearance and that they only became aware of the suit when the decree-holder sought for the reconstruction of a skeleton file. The 4th respondent termed the application as an ambush, full of falsehoods, misleading and dishonest. In paragraph 11 of the reply, the 4th respondent averred that the respondents would be making a formal application to have the exparte judgment set aside in order to defend the suit. Lastly, the 4th respondent urged the court to dismiss the application.
4. The central issue before the court is whether there is need to provide security during the execution of the decree by the Land Registrar Imenti North District. The decree sought to be executed is dated June 10, 2014. It is yet to be amended to reflect the legal representative of the judgment debtor although it is not mandatory under Sections 37 & 38 of the Civil Procedure Act.
5. The court under Section 38 of the Civil Procedure Act has the mandate to enforce the execution of its decree. Order 22 Rules 18, 19, 29, 31, 83 and 84 of the Civil Procedure Rules relate to notice to show cause and any obstruction thereof by the judgment debtor.
6. The judgment debtors herein are entitled to a notice to show cause since the instant decree is over one year. I find the application merited. The same is allowed so long as the rights of the respondents are protected in line with the law.
7. The OCS Meru Police Station is directed to provide security to the Land Registrar on the date he or she shall set and serve upon the respondents to visit the two parcels of land in line with the mandate under Sections 18-21 of the Land Registration Act.Orders accordingly.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERUON THIS 5TH DAY OF JUNE 2023In presence ofC.A John PaulMr. Ringera for the applicantRespondentsHON. CK NZILIELC JUDGE