[2021] KEELC 974 (KLR)
The court found that the application was a legitimate step in enforcing the judgment delivered on 8/11/2019, which ordered specific performance against the defendant. The defendant's refusal to provide the original title deed was an attempt to frustrate the execution of the decree. In the absence of opposition or a...
Source-derived case information.
- Citation
- [2021] KEELC 974 (KLR)
- Parties
- Plaintiff: Nancy Wanjiru Wathiru; Defendant: Elijah Njuguna Gikara
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 808 of 2017
- Procedural Posture
- Miscellaneous Application / Post Judgment Enforcement Application
- Outcome
- Application allowed; orders granted as prayed.
- Judges
- BM Eboso
- Legal Topics
- Specific Performance, Transfer of Land, Enforcement of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Wanjiru Wathiru
Plaintiff
Elijah Njuguna Gikara
Defendant
Procedural Posture
Miscellaneous Application / Post Judgment Enforcement Application
Legal Issues
- 1 Whether the Land Registrar should be ordered to dispense with the requirement for production of the original title deed for registration of the suit property in the plaintiff's name.
- 2 Whether the plaintiff is entitled to enforcement of the judgment despite the defendant's refusal to produce the original title.
Ratio Decidendi
The court found that the application was a legitimate step in enforcing the judgment delivered on 8/11/2019, which ordered specific performance against the defendant. The defendant's refusal to provide the original title deed was an attempt to frustrate the execution of the decree. In the absence of opposition or a stay of execution, the court exercised its discretion to grant the order sought, allowing the Land Registrar to dispense with the requirement for the original title in order to implement the decree and effect transfer of the property to the plaintiff. The court further ordered the defendant to bear the costs of the application, reinforcing the principle that a judgment debtor...
Court Disposition
Application allowed; orders granted as prayed.
Orders
- The Land Registrar is ordered to dispense with the production of the original title in implementing the decree of the court dated 8/11/2019 and issued on 17/12/2019.
- The defendant shall bear costs of this application.
Full Case Text
Judgment text and source record
24 paragraphs
THE REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT THIKA
ELC CASE NO. 808 OF 2017
NANCY WANJIRU WATHIRU.....................................................................PLAINTIFF
=VERSUS=
ELIJAH NJUGUNA GIKARA....................................................................DEFENDANT
RULING
1. Judgment in this suit was rendered by Gacheru J on 8/11/2019. The subsequent decree extracted out of the Judgment reads as follows:-
“A) That Judgment be and is hereby entered for the Plaintiff as against the defendant as follows:-
i) That an order for specific performance be and is hereby issued that the defendant does alienate and transfer 1 (one) acre from land parcel Kiambu/Munyu/1273 also known as Plot 455B in Munyu Settlement into the Plaintiff’s name.
ii) That an order be and is hereby issued directing the Deputy Registrar of this Honourable Court to execute all the necessary vesting transfer forms and execute all the necessary vesting transfer forms and the Land Control Board forms on behalf of Elijah Njuguna Gikaba in respect to 1 (one) acre from land parcel Kiambu/Munyu/1273 also known as Plot 455B in Munyu Settlement Scheme.
iii) That costs of this suit are awarded to the plaintiff as against the defendant.”
2. On or about 9/9/2021, the plaintiff brought an application dated 10/8/2021 seeking an order enjoining the Land Registrar to dispense with the requirement for production of the original title for the purpose of registering the suit property in the name of the plaintiff. The application was supported by the plaintiff’s affidavit sworn on 10/8/2021. She deposed that she had approached the defendant to give her the original title deed for presentation to the Land Registrar and the defendant had declined, prompting her to bring the application. The application was not opposed.
3. I have considered the application. It was brought as part of the process of enforcing the award of the court contained in the Judgment rendered on 8/11/2019. In the absence of any opposition to the application or any order of stay of execution, I will grant the application in terms of prayer 2 of the notice of motion.
4. Consequently, the notice of motion dated 10/8/2021 is allowed in the following terms:-
(a) The Land Registrar is hereby ordered to dispense with the production of the original title in the implementation of the decree of this Court dated 8/11/ 2019 and issued on 17/12/2019.
(b) The defendant shall bear costs of this application.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 19TH DAY OF NOVEMBER 2021.
B M EBOSO
JUDGE
In the presence of: -
Mr. Kinyanjui for the Plaintiff
Court Assistant: Lucy Muthoni