https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4828

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT EMBU** **ELC CASE NO. 30 OF 2014 (O.S.)** **NGARI NGURU (DECEASED)**....................................................**APPLICANT** **VERSUS** **JOSPHAT MACHARIA KARACHI**....................................**1ST RESPONDENT** **STEPHEN MUYA CHEGE**...............................................**2ND RESPONDENT** **SUSAN NYAMBURA MACHARIA**..................................**3RD RESPONDENT** **ESTHER MUTHONI MACHARIA**...................................**4TH RESPONDENT** **CYRUS KARACHI MACHARIA**.......................................**5TH RESPONDENT** **HENRY MWANGI NDUNGU**........................................**6TH RESPONDENT** **JOSEPH MUIRURI KAMUNDA**......................................**7TH RESPONDENT** **RULING** Before this Court is the Notice of Motion dated 9th March 2026 brought by the substituted Applicants, Cecily Mwendia Ngari and Njiru Nguru, seeking orders that the decree issued on 4th February 2026 be executed by directing the Land Registrar, Mbeere, to register them as administrators of the estate of the deceased Applicant in respect of Land Parcels Nos. NTHAWA/RIANDU/1544, 4079, 4080, 4081 and 4082; that the cautions registered against the said parcels be removed; and that the Land Registrar be directed to dispense with production of the original title deeds in implementing the decree. The application is supported by the affidavit of Cecily Mwendia Ngari who depones that the original Applicant, Ngari Nguru, died on 13th June 2015 before the suit was concluded and that she and Njiru Nguru were subsequently substituted as administrators of his estate. She further depones that judgment was eventually delivered in favour of the Applicant and a decree issued on 4th February 2026. According to the Applicants, execution has been frustrated because the subject properties remain encumbered by cautions lodged by the deceased during the pendency of the suit and because the original title deeds are in the possession of the judgment debtors who have declined or failed to surrender them. Although served with the application, the Respondents neither filed any replying affidavit nor grounds of opposition and did not participate in the hearing of the application. Consequently, the factual depositions made by the Applicants remain uncontroverted. Having considered the application, the supporting affidavit and the record of the Court, the issue falling for determination is whether the Applicants have established sufficient grounds to warrant the orders sought. It is not in dispute that this Court rendered judgment in favour of the Applicant and a decree was issued on 4th February 2026. Equally undisputed is that there is no order staying execution of that decree. Under Order 42 Rule 6(1) of the Civil Procedure Rules, an appeal does not of itself operate as a stay of execution unless the Court expressly grants such stay. The law is therefore settled that a successful litigant is entitled to enjoy the fruits of his judgment unless there exists a lawful impediment preventing execution. The Court of Appeal in **Butt v Rent Restriction Tribunal [1982] KLR 417** emphasized that the purpose of a stay of execution is to preserve the subject matter pending appeal, but in the absence of such stay, a successful litigant ought not to be deprived of the benefit of a lawful judgment. Similarly, in **Machira t/a Machira & Co. Advocates v East African Standard (No. 2) [2002] KLR 63**, the Court observed that the ordinary principle is that a successful party should not be unnecessarily kept out of the fruits of his judgment. The Applicants seek registration of the suit properties in their names not in their personal capacities but as the duly substituted administrators of the estate of the deceased Applicant. The record confirms that this Court allowed their substitution following the death of the original Applicant. Consequently, the decree must necessarily be implemented in a manner that reflects the legal representatives now prosecuting and executing the estate's rights. The orders sought merely facilitate implementation of the judgment already rendered and do not vary or enlarge the decree. The Applicants have further sought removal of the cautions registered against the suit properties. The evidence before Court shows that those cautions were lodged by the deceased Applicant himself during the pendency of these proceedings to preserve the suit properties. Having now obtained judgment in his favour, the continued existence of those cautions serves no useful purpose and, indeed, impedes implementation of the decree. Section 73 of the Land Registration Act, 2012 empowers the Court to order the removal or withdrawal of a caution where circumstances so justify. Since the cautioner has succeeded in the litigation and the caution now stands in the way of execution, this is an appropriate case for the Court to order their removal. The Applicants also pray that the Land Registrar be permitted to dispense with production of the original title deeds. The explanation offered is that the titles remain in the possession of the judgment debtors and cannot reasonably be obtained. This Court takes judicial notice that where implementation of a court decree is frustrated by refusal or failure of a judgment debtor to surrender title documents, the Land Registrar is empowered under Sections 79, 80 and other relevant provisions of the Land Registration Act to implement lawful court orders, including registration without production of the original title where the Court has so directed. To insist upon production of titles held by an unwilling judgment debtor would permit such party to defeat or delay execution of a valid decree of the Court. This Court is also guided by Sections 1A, 1B and 3A of the Civil Procedure Act, which require courts to facilitate the just, expeditious and effective determination and enforcement of disputes. The Court cannot permit administrative hurdles created by the unsuccessful parties to render its judgment incapable of enforcement. In the circumstances, I am satisfied that the Notice of Motion dated 9th March 2026 is merited. Accordingly, the Court makes the following orders: 1. The Notice of Motion dated 9th March 2026 is hereby allowed. 2. The Land Registrar, Mbeere, is hereby directed to execute and implement the decree issued by this Court on 4th February 2026 by registering Land Parcels Nos. **NTHAWA/RIANDU/1544, 4079, 4080, 4081 and 4082** in the joint names of **Cecily Mwendia Ngari and Njiru Nguru**, as the substituted legal representatives and administrators of the estate of the deceased Applicant, Ngari Nguru, in accordance with the judgment and decree of this Court. 3. The cautions registered against Land Parcels Nos. **NTHAWA/RIANDU/1544, 4079, 4080, 4081 and 4082** are hereby ordered removed to facilitate implementation of the decree. 4. The Land Registrar, Mbeere, is directed to dispense with the production of the original title deeds relating to the aforesaid parcels if the same are unavailable or are withheld by the judgment debtors, and to proceed with registration in compliance with this Court's decree. 5. In view of the unopposed nature of the application and the fact that the orders sought merely facilitate execution of an existing decree, there shall be **no order as to costs**. It is so ordered. DATED, DELIVERED AND SIGNED AT EMBU THIS 23RD DAY OF JULY, 2026 ……………………………….. HON. E.C CHERONO ELC JUDGE, EMBU In the presence of; 1. Macharia Muraguri for the Applicant 2. Respondent/ Advocate - Absent 3. Ruth – Court Assistant