[2024] KEELC 760 (KLR)
The court found that the applicant, having obtained judgment in his favour and with no stay of execution in place, is entitled to the execution of the decree, including the transfer of two acres from Ngong/Ngong/48197 to himself. The plaintiffs are not in occupation of the land and will not suffer prejudice, as they...
Source-derived case information.
- Citation
- [2024] KEELC 760 (KLR)
- Parties
- Plaintiff: Moses Clement Muhia Njoroge; Plaintiff: Jacinta Nyambura Mburu; Plaintiff: James Ndungu Kinyanjui; Defendant: Jane Waithera Lesaloi; Defendant: Joseph Gathagu Kagika; Defendant: Andrian Murithi; Defendant: John Gitau Kioi; Defendant: The District Land Surveyor, Kajiado; Defendant: The District Land Registrar, Kajiado
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 743 of 2017
- Procedural Posture
- Notice of Motion / Ruling on Post Judgment Execution Application
- Outcome
- motion allowed
- Judges
- MN Gicheru
- Legal Topics
- Execution of Decree, Land Transfer, Implementation of Judgment, Stay of Execution, Appeal Pending
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Clement Muhia Njoroge
Plaintiff
Jacinta Nyambura Mburu
Plaintiff
James Ndungu Kinyanjui
Plaintiff
Jane Waithera Lesaloi
Defendant
Joseph Gathagu Kagika
Defendant
Andrian Murithi
Defendant
John Gitau Kioi
Defendant
The District Land Surveyor, Kajiado
Defendant
The District Land Registrar, Kajiado
Defendant
Procedural Posture
Notice of Motion / Ruling on Post Judgment Execution Application
Legal Issues
- 1 Whether the court should order the District Surveyor to carve out two acres from Ngong/Ngong/48197 and issue a new parcel number to the third defendant.
- 2 Whether the Deputy Registrar should be authorized to sign and execute transfer documents for the land in favour of the third defendant.
- 3 Whether the existence of a pending appeal and prior subdivisions preclude execution of the decree.
Ratio Decidendi
The court found that the applicant, having obtained judgment in his favour and with no stay of execution in place, is entitled to the execution of the decree, including the transfer of two acres from Ngong/Ngong/48197 to himself. The plaintiffs are not in occupation of the land and will not suffer prejudice, as they are entitled to a refund of the purchase price from the first defendant. The refusal of the first defendant to cooperate in the transfer process cannot be allowed to frustrate the applicant's right to the fruits of judgment. The existence of a pending appeal does not bar execution, especially since an application for stay was previously dismissed. The court also noted that the...
Court Disposition
motion allowed
Orders
- The District Surveyor is to go to the ground and carve out two acres from Ngong/Ngong/48197 and issue the third defendant with a new parcel number.
- The Deputy Registrar is to sign and execute all prerequisite documents for the swift transfer of L.R. 48197 to the third defendant.
Full Case Text
Judgment text and source record
35 paragraphs
Njoroge & 2 others v Lesaloi & 5 others (Environment & Land Case 743 of 2017) [2024] KEELC 760 (KLR) (19 February 2024) (Ruling)
Neutral citation: [2024] KEELC 760 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment & Land Case 743 of 2017
MN Gicheru, J
February 19, 2024
Between
Moses Clement Muhia Njoroge
1st Plaintiff
Jacinta Nyambura Mburu
2nd Plaintiff
James Ndungu Kinyanjui
3rd Plaintiff
and
Jane Waithera Lesaloi
1st Defendant
Joseph Gathagu Kagika
2nd Defendant
Andrian Murithi
3rd Defendant
John Gitau Kioi
4th Defendant
The District Land Surveyor, Kajiado
5th Defendant
The District Land Registrar, Kajiado
6th Defendant
Ruling
1. This ruling is on the notice of motion dated 19/9/2023. The motion which is by the third defendant is brought under Order 22 of the Civil Procedure Rules, Sections 1A, 1B, 3A, 38, 63 and 98 of the Civil Procedure Act, Articles 50 and 159 of the Constitution together with any other enabling provisions of the law.
2. The motion seeks the following orders.1. That the District Surveyor to go to the ground and carve out two (2) acres from Ngong/Ngong/48197 and to issue the third defendant with a new parcel number for the same.2. That the Deputy Registrar to sign and execute all the prerequisite documents for the swift transfer of L.R. 48197. 3.That the costs of this application be in the cause.
3. The motion is supported by six grounds, an affidavit sworn by the applicant and three annexures, the gist of which is as follows.Firstly, on 2/11/2022, this court entered judgment in favour of the applicant and the second and fourth defendants.Secondly, the said judgment validated the decree issued on 4/1/2011 in Land Dispute Tribunal Case No. 77 of 2010 which was to the effect that the two acres be carved off the bigger land and be registered in the name of the applicant.Thirdly, the first defendant has proved to be uncooperative in signing the land transfer documents and continues to frustrate the third defendant.Finally, unless the court issues the orders sought, the applicant will never enjoy the fruits of the judgment.
4. The motion is opposed by the three Plaintiffs and the first one has sworn a replying affidavit dated 19/10/2023 in which he replies as follows. The decree cannot be implemented for the following reasons.Firstly, restoring title no. Ngong/Ngong/48197 to its original form will result in the cancelling of thirty (30) other subdivisions that were not part of the suit land.Secondly, there is a live appeal (C.A. No. E243 of 2023) against the judgment and decree given on 2/11/2022 and the implementation of the decree herein will render the said appeal nugatory.
5. I have carefully considered the motion in its entirety including the affidavits, annexures and the grounds. Submissions were to be filed and served by 20/12/2023 and by the time the court went on recess on 22/12/2023, no such submissions had been filed. I am writing this ruling without the submissions by the learned counsel for the parties. I find that the motion has merit for the following reasons.Firstly, the applicant has been in occupation of the suit land for many years. None of the plaintiffs is in occupation of the suit land. The plaintiffs have nothing to lose considering that the court ordered that they get a refund of the purchase price from the first defendant.Secondly, an application for stay of execution was dismissed on 18/5/2023. The stay of execution which was sought by the plaintiffs having been refused by this court, nothing now stands in the way of the execution of the decree in favour of the second, third and fourth defendants.Thirdly, the third defendant is not seeking to alienate the land but to simply transfer it to himself, as was the intention of the seller Job Ole Kango in the eighties. Since the land is immovable, in the event that the plaintiffs succeed in the pending appeal, it will be available to them.Fourthly, a proper reading of the judgment dated 2/11/2022 will show that prayer 2 of the motion was one of the prayers granted in the judgment. The court allowed the implementation of the decree of the Land Disputes Tribunal when it allowed the counterclaims by the second, third and fourth defendants.For the above stated reasons, the motion is allowed in its entirety.
It is so ordered.
Dated Signed and Delivered at Kajiado Virtually this 19thDay of February 2024. M.N. GICHERUJUDGE