[2015] KEHC 5938 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

E.L.C. NO 61 OF 2014

FORMERLY KERUGOYA 49 OF 2014

NAMU WACHIRA.....................................................1st PLAINTIFF/APPLICANT

NAZARIO NDWIGA WACHIRA..............................2nd PLAINTIFF/APPLICANT

SEBASTIAN NJERU WACHIRA............................3rd PLAINTIFF/APPLICANT

VERSUS

NJERU WACHIRA alias SIMBA WACHIRA......DEFENDANT/RESPONDENT

RULING

Introduction

The three plaintiffs/applicants have filed this notice of motion dated 6th January, 2015 through their counsel seeking the following orders from this court:

That the Deputy Registrar of this Honourable court be authorized to execute all the relevant documents in place of Njeru Wachira alias Simba Wachira to facilitate the implementation of the decree issued on 25th September, 2014 and specifically the determination of the declared trust and equal subdivision of land parcel No. Kyeni/Kigumo/59 between the plaintiffs Namu Wachira, Nazario Ndwiga Wachira, Sebastian Njeru Wachira and the defendant Njeru Wachira alias Simba Wachira.

That the Land Control Board Runyenjes do dispense with the actual presence of Njeru Wachira alias Simba Wachira.

That the Land Control Board, Runyenjes and the District Land Registrar, Embu do dispense with the original title deed/land certificate in respect of land parcel Kyeni/Kigumo/59.

That the Officer Commanding Runyenjes Police Station (O.C.S) be ordered to provide security to the surveyor during the sub-division of land parcel number Kyeni/Kigumo/59.

That the defendants/applicants do meet/pay all expenses to effect any of the orders above in execution of the decree.

That costs be in the cause.

The notice of motion is supported by the grounds set out in that motion. Additionally, it is supported by an affidavit sworn to by Namu Wachira on behalf of the other applicants

The defendant/respondent has not filed any document in response to this motion. Stated differently, he has not taken part in this motion. It seems that the reason for this position is that the defendant did not enter any appearance or file a defence to the claim during the trial.

The case for the Plaintiff/Applicant:

This is a post judgement application as the trial was conducted and concluded in the High Court at Kerugoya (Olao, J) on 25th September, 2010. The application seeks to enforce and execute the orders which were granted in favour of the applicants. Those orders relate with declarations that the defendant/respondent held the suit land parcel number Kyeni/Kigumo/59 in trust for himself and the three applicants.

Additionally, the court ordered that the trust was by virtue of that judgement determined and that the suit land was to be subdivided and shared equally between the three applicants and the respondent. The court also ordered that in effecting the subdivision of the suit land, account should be taken of the portions of the suit land occupied by the parties.

The trial court made no orders to cost after finding the parties were members of one family.

According to the affidavit of Mr. Namu Wachira, on behalf of the other applicants, he approached his elder brother who is the respondent and he showed him the decree of the court. In response, the respondent without any reasonable cause refused to co-operate in executing the necessary documents to effect the subdivision and transfer. It is also his evidence in paragraph 7 of the affidavit that the respondent in addition to refusing to file a defence went further and refused to attend the court.

Accordingly, the trial proceeded by way of formal proof. Furthermore, Mr Namu Wachira has also stated that the respondent and his family have become very hostile and there is apprehension that they will not allow a peaceful execution of the decree. It is for this reason that they require the provision of security by the police. Furthermore, he has also stated that the respondent will not voluntarily produce or surrender the original land certificate/title deed to the lands office in view of the fact that he has unwilling to honour the court decree.

He has further stated that the respondent will not apply and present himself before the local land control board at Runyenjes to consent to the subdivision and transfer of the resultant portions of land to himself and the applicants. The applicants have also stated in the affidavit in paragraph 11 that they are ready to meet and pay all the expenses required to implement the court decree. They have therefore urged the court to grant them the orders sought.

The Case for the Defendant/Respondent (Mr Njeru Wachira alias Simba Wachira)

The respondent has not taken part in this application. He also did not take part in the trial proceedings.

The Applicable Law:

The affidavit evidence clearly shows that this court is only required to execute the judgement and decree which was granted in favour of the applicants. The court practice is that all court orders have to be implemented so that the decree holder may enjoy the fruits of his labour.

In the light of the affidavit evidence, the law applicable is the usage of police in the execution of court decrees. It is therefore necessary to make reference to the National Police Service Act number 11A of 2011.

According to Section 24 of the National Police Service Act, it is the duty of the police to maintain law and order and to enforce all laws and regulations with which it is charged, amongst other functions. The provisions of that Section 24 are as follows:

24. Functions of the Kenya Police Service

a) Provision of assistance to the public when in need;

b) maintenance of law and order;

c) preservation of peace;

d) protection of life and property;

e) investigation of crimes;

f) collection of criminal intelligence;

g) prevention and detection of crime;

h) apprehension of offenders;

i) enforcement of all laws and regulations with which it is charged; and

j) performance of any other duties that may be prescribed by the Inspector-General under this Act or any other written law from time to time.

It is clear from the provisions of Section 24 that there is no explicit reference to implementation of court orders as one of the functions that the police are required to discharge. According to the affidavit evidence of the applicant, they need security of the police during the execution of the court order. The police are under a statutory duty to maintain law and order. In my view the above provisions are wide enough to include the provision of security on the ground to enable the execution and implementation of the court order.

Furthermore, my attention has been drawn to two cases of the High Court where police assistance was sought and obtained by the applicants for purposes of executing court decrees and orders. The first case is that of Claire Adamba Okanga v. Godfrey Gichuki Waiharo being Civil Appeal number 69 of 2012 (at Nairobi) in which the court ordered the officer commanding in charge of the police station to assist the appellant in enforcing the court order. The court had directed that the ex parte applicant be given interim custody of the two children of their marriage. The police assistance therein was requested for in order to break into the premises, where the children of the marriage were residing, because the appellant/applicant had been denied access to those premises.

The second case in which the court ordered police assistance in the execution of a court order is that of Republic v. The Registrar of Societies and others, being Misc Civil Application (J.R) number 24 of 2014 (at Mombasa). That was a case in which theex-parte applicants were granted orders directing the police to assist the court bailiff in restoring possession of the suit premises to the ex-parteapplicant.

That court went further to require the officer in charge of the police station responsible for the area, where the suit premises were situate to ensure that law, order and peace were maintained during and after the restoration of the ex-parte applicants into the suit premises.

Furthermore, it is also the court practice that an officer of the court usually the executive officer or the Deputy Registrar is required to execute the necessary documents to facilitate the implementation of a court decree. This is clear from the case of Mandavia v Rattan Singh (1968) EA 146

The usage of the police in executing court orders is clearly recognized by the Auctioneers Act Chapter 526 of the Laws of Kenya. This is clear from Rule 9 of the Auctioneer Rules of 1997. The provisions of that rule authorized an auctioneer to apply for police assistance in circumstances where the auctioneer intends to break the door of the premises with the intention of taking possession of the goods or where he expects resistance or intimidation by the judgement debtor or some other persons.

The auctioneer is also authorized to seek police assistance where the auctioneer has reasonable cause to believe that there is likely to be a breach of the peace. The terms of rule 9 are coached in the following language:

(1) Where an auctioneer has reasonable cause to believe that -

(a) he may have to break the door of any premises where goods may be seized or repossessed; or

(b) he may be subject to resistance or intimidation by the debtor or other person; or

(c) a breach of the peace is likely as a result of seizure, repossession or attempted seizure of repossession of any property,the auctioneer shall request for police escort from the nearest police station in order to carry out his duties peacefully.

(2) An application under this rule shall be by motion by way of a miscellaneous application support by an affidavit and may be heard ex parte.

Issues for Determination:

In the light of the affidavit evidence of the applicable law, the issues for determination in this application are as follows:

Whether or not the applicants have made out a case for the grant of the orders sought requiring office assistance in the execution of the court order.

Whether or not the Deputy Registrar of this court should be authorized to execute all the necessary documents.

Whether or not the Land Control Board at Runyenjes should dispense with the presence of the respondent.

Whether or not the Land District at Embu should dispense with the original title deed to the suit land.

Who should pay for the costs of this application.

Evaluation of the Affidavit Evidence, Findings and the Law:

I have considered the affidavit evidence, submissions of counsel for the applicants and the applicable law. I find from that evidence that the respondent did not take part in the trial of this case. I also find that he is potentially hostile to the execution processes that require him to implement this court decree.

Furthermore, I find from the evidence tendered that the subdivision of the suit land into four equal shares to be given to each beneficiary will require actual police presence at the site. I also find that the judgement debtor has been very uncooperative throughout the trial of this case. In the light of the cases I have referred to above and the affidavit evidence, I find that the applicants are entitled to the orders that they are seeking from this court in terms of their prayers in the notice of motion

Verdict and Disposal Order:

In the light of the foregoing, I hereby make the following orders:

An order directing the Deputy Registrar to execute all the relevant documents in place of Njeru Wachira alias Simba Wachira in terms of prayer 1 of the notice of motion.

The presence of Njeru Wachira alias Simba Wachira at the Land Control Board at Runyenjes is hereby dispensed with.

The production of the original title deed in respect of the suit land before the District Land Registrar is hereby dispensed with.

The officer in charge of Runyenjes Police Station is directed to provide security to the personnel that will be engaged in the subdivision of the suit land.

The expenses arising out of the execution of this decree will be met by the applicants.

There will be no order as to costs as the parties involved are close family members.

RULING DATED, SIGNEDand DELIVERED in open court at EMBU this..23rd .. day of FEBRUARY,..2015

In the presence of the Ms Muriuki holding brief for Mr Ithiga for plaintiffs and in the absence of the defendant/respondent

Court clerk Mr Muriithi

J.M. BWONWONGA

JUDGE