[2024] KEELC 13326 (KLR)
The court found that the respondent, having been declared a trustee and ordered to transfer the suit land to the applicant, failed and refused to execute the necessary transfer documents despite being served and summoned. In order to give effect to its judgment and prevent frustration of its orders, the court held...
Source-derived case information.
- Citation
- [2024] KEELC 13326 (KLR)
- Parties
- Applicant: Samwel Walela Nabiswa; Respondent: Otema Walela alias Maurice Otema Walela
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E003 of 2023
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Application for Execution
- Outcome
- application allowed
- Judges
- EC Cherono
- Legal Topics
- Trusts of Land, Transfer of Title, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samwel Walela Nabiswa
Applicant
Otema Walela alias Maurice Otema Walela
Respondent
Procedural Posture
Notice of Motion / Ruling on Post Judgment Application for Execution
Legal Issues
- 1 Whether the Deputy Registrar should be directed to sign transfer documents on behalf of the respondent to effect transfer of land title Ndivisi/Muchi/207 to the applicant.
- 2 Whether the respondent's refusal to sign transfer documents warrants court intervention for execution of judgment.
- 3 Whether the land registrar should dispense with statutory requirements ordinarily fulfilled by the respondent.
Ratio Decidendi
The court found that the respondent, having been declared a trustee and ordered to transfer the suit land to the applicant, failed and refused to execute the necessary transfer documents despite being served and summoned. In order to give effect to its judgment and prevent frustration of its orders, the court held that it is just and proper to direct the Deputy Registrar to sign all relevant documents on behalf of the respondent. The court further directed the Land Registrar to dispense with production of documents ordinarily required from the respondent, ensuring the transfer process is not hindered by the respondent's non-cooperation. The application was therefore allowed to serve the...
Court Disposition
application allowed
Orders
- The Deputy Registrar is directed to sign the transfer forms and all statutory documents on behalf of the respondent to facilitate transfer of Land Title Number Ndivisi/Muchi/207 to the applicant.
- The Land Registrar, Bungoma County, is directed to dispense with production of the original title deed, passport size photographs, and any other statutory documents by the respondent to facilitate the transfer.
Full Case Text
Judgment text and source record
21 paragraphs
Nabiswa v Walela alias Maurice Otema Walela (Environment & Land Case E003 of 2023) [2024] KEELC 13326 (KLR) (21 November 2024) (Ruling)
Neutral citation: [2024] KEELC 13326 (KLR)
Republic of Kenya
In the Environment and Land Court at Bungoma
Environment & Land Case E003 of 2023
EC Cherono, J
November 21, 2024
Between
Samwel Walela Nabiswa
Applicant
and
Otema Walela alias maurice Otema Walela
Respondent
Ruling
1. The plaintiff Applicant has moved this Honourable Court vide a Notice of Motion under certificate of urgency dated 8th July, 2024 seeking the following orders;1. (spent)2. That this Honourable court be pleased to direct the Deputy Registrar to sign all the relevant documents on behalf of the defendant/Respondent herein that will facilitate the transfer of Title Number Ndivisi/Muchi/207 to the plaintiff/Applicant’s name3. That the Respondent be ordered to pay costs of this application in any event.
2. The application is based on five grounds apparent on the face of the said application and a supporting affidavit of the Plaintiff/Applicant sworn on even date. The supporting affidavit contain three annexures being a copy of a decree, a copy of a letter by the Applicant’s advocate to the defendant/Respondent dated 6/6/2024 all marked ‘SWN-1, SWN2 & SWN3.
3. The said application is not opposed despite an affidavit by service one George Mumali, licensed process server sworn on even date. According to the Applicant, a judgment was entered by this Honourable court in his favour against the Defendant/Respondent in respect of the suit land on 11/04/2024. After the impugned judgment was delivered, his advocates on record wrote a letter to the Defendant forwarding the transfer documents for signing and return. He stated that he even went to the area Chief who summoned the Defendant/Respondent to sign the said transfer documents but the Defendant/Respondent refused. He therefore asked this court to order the Deputy Registrar to sign all statutory documents to facilitate the transfer of the suit property in his name as ordered by this Honourable court.
4. I have considered the Notice of Motion application, the supporting affidavit, the annexures thereto and the applicable law. It is not disputed that this court delivered judgment in favour of the plaintiff/Applicant herein on 11/4/2024 where it was declared that the defendant/Respondent’s registration of the land comprised in Title Number Ndivisi/Muchi/207 is in the capacity as a trustee for the plaintiff and which trust should now terminate and the defendant ordered to transfer the said land to the plaintiff/Applicant and in default, the Deputy Registrar of the court to execute all such documents as would facilitate the transfer of the said land to the plaintiff/Applicant.
5. The Applicant has deposed on oath that his advocate on record sent transfer documents to the Defendant/Respondent to sign and return to enable him effect the transfer of the suit land in his name as ordered by the court but he declined. I am satisfied that the defendant/Respondent was indeed sent the transfer documents for his execution but he failed and/or refused to do. Since court orders are not given in vain, I find that it would serve the ends of justice and no prejudice will be suffered by the Defendant/Respondent if the said application is allowed.
6. The upshot of my finding is that the Notice of Motion application dated 8th July, 2024 is merited and the same is allowed as follows;1. The Deputy Registrar of this Honourable court to sign the transfer forms and all statutory documents on behalf of the Defendant/Respondent herein to facilitate the transfer of Land Title Number Ndivisi/Muchi/207 in the name of the plaintiff/Applicant.2. The land Registrar, Bungoma county is hereby directed to dispense with the production of the original Title deed, copies of passport size photographs and the production of any other statutory documents by the Defendant/Respondent to facilitate the transfer of land parcel NO. Ndivisi/Muchi/207 in the name of the plaintiff/Applicant.3. The Costs of this application to be borne by the Defendant/Respondent.
READ, DELIVERED AND SIGNED AT BUNGOMA THIS 21ST DAY OF NOVEMBER, 2024. HON. E.C CHERONOELC JUDGEIn the presence of;Applicant/Advocate-absent.Respondent/Advocate-absent.Bett C/A.