https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4830

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC CASE NO. E041 OF 2021** **JAMES HARMON OKECH.........................1ST PLAINTIFF/APPLICANT** **JANE GATI RIOBA..................................2ND PLAINTIFF/APPLICANT** **-VERSUS-** **CHARLES GIBITI MANGITI....................DEFENDANT/RESPONDENT** **RULING** **The application** 1. Through a Notice of Motion dated 3rd March 2026, which was filed under certificate of urgency, the applicants sought the following ORDERS THAT 2. …Spent 3. …Spent 4. THAT this Honourable Court be pleased to order the Deputy Registrar to execute transfer forms and application for consent of L.C.B of land parcels No. BUGUMBE/MABERA/1292 and BUGUMBE/MABERA/1293 all measuring approximately 2.6 Ha to transfer the suit properties in favour of the Applicant in place of the Respondent. 5. THAT Costs of this Application be provided for. 6. The application is based on the grounds outlined on its face as well as being supported by the depositions contained in the Affidavit deponed by James Harmon Okech, the 1st Applicant. The basis of the application is that the applicants were successful in a litigation giving rise to a judgment of this court dated 31st October 2025. In it the court found that they were entitled by way of adverse possession to land parcels registration numbers Bugumbe/Mabera/1292 and Bugumbe/Mabera/1293. Accordingly, the Court ordered that Respondent does transfer to the applicants, the portions that they had been occupying. Consequently, they became entitled to own the parcels through adverse possession. The 1st applicant states that, despite this finding, all efforts to have the Respondent execute the transfer documents for the parcels of land have not been successful. He prays that this court orders the Deputy Registrar to execute the documents mentioned. 7. The Respondent did not respond to the application. **The applicants’ Submissions** 1. The application was canvassed by way of written submissions. The applicants filed their submissions dated 20th May 2026, which the court has duly considered. They relied on Section 98 of the Civil Procedure Act which empowers the court to authorize an officer of the court to execute documents where a party refuses or neglects to do so. They submitted that the rationale of this provision is to allow successful litigants to enjoy the fruits of their litigation. 2. The applicants cited a number of decisions where courts authorized deputy registrars to execute documents in instances where parties fail to do so. These include **Mbaabu v M'Ikiugu (Environment & Land Case E015 of 2021) |2022] KEELC 14654 (KLR) (9 November 2022)** and **Agot v Chiambe [2022] eKLR.** 3. Finally, the applicants submitted that the respondent should not be allowed to defeat a valid judgment of the court by his refusal to execute transfer documents and urged the court to allow the applications. **Issues analysis and determination** 1. The main issue for determination in this application is whether the Deputy Registrar should execute the transfer documents for the suit properties as prayed by the applicants. Attendant to this issue is the question of costs of the application. 2. The court has carefully read the record. It shows that there is a valid decree of this court in it. It is dated 20th January 2026. The decree directs the Defendant, who is the Respondent now, to transfer a total of 2.6 ha of the suit properties to the applicants. 3. The applicants maintain that they had since prepared and served upon the respondent the requisite transfer documents. He has not honoured the request to comply. The respondent did not reply to the instant application. 4. In **Murunga & another v Juma (Environment and Land Miscellaneous Application E003 of 2022) [2022] KEELC 12797 (KLR) (4 October 2022) (Ruling)**, the learned judge stated: “***The respondent did not file any replying affidavit to controvert the facts deponed to by the applicants. In the circumstances, I have no reason to doubt the evidence placed before the court by the applicant***.” 1. Thus, where a party fails to file an Affidavit to contradict the position of facts as deposed by the opposing or adverse party by an Affidavit the facts deposed to are not controverted, and the adverse party who has not filed the response is taken to have admitted to the facts deposed. In essence, the Court takes it that the facts are so clear and true that the said party is left with no answer thereto or so to say, tonguetied. 2. The above is the similar position herein. It follows, therefore, the allegations on the respondent’s failure to execute the said documents are taken to be true or admitted absent any controverting deposition. As correctly submitted by the applicants, a successful party to a suit has the right to enjoy the fruits of his/her litigation. The same cannot be unnecessarily thwarted by the opposing party through failure and or refusal to cooperate in ensuing that the ends of justice are met. Section 98 of the Civil Procedure Act saves litigants in such a position as the applicants herein from the possible effects of inaction of a party who fails to execute documents in compliance with a decree or order of the court. The provision stipulates as follows: ***98. Execution of instruments by order of court*** *Where any person neglects or refuses to comply with a decree or order directing him to execute any conveyance, contract or other document, or to endorse any negotiable instrument, the court may, on such terms and conditions, if any, as it may determine, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contract, document or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it.* 1. Courts have time and again allowed the execution of documents by an officer of the court hence dispensing with the requirement that a party to execute them where a party refuses and/ or neglects to execute them (see **AWW v CNK (Civil Case 38 of 2013) [2026] KEHC 7803 (KLR) (Family) (25 May 2026) (Ruling); Elimu Sacco limited v Paul Mwangi, HC (NRB) Misc. civil application no. 368 of 2012).** 2. This Court notes that the application is not time barred pursuant to section 4 (4) of the Limitations of Actions Act (see **Njoroge & another v County Council of Kiambu & another (Civil Suit 964 of 1979) [2015] KEELC 843 (KLR) (26 October 2015) (Ruling).** Further, I notes that there is an existing valid decree of the court that is capable of execution **(see, Wambui v Wangari (Environment and Land Appeal E006 of 2023) [2024] KEELC 4214 (KLR) (29 April 2024) (Judgment)).** 3. Accordingly, the court finds that the application is merited. It is hereby allowed in terms of prayer 3. Therefore, this Court hereby directs **the Deputy Registrar to execute the transfer forms and application for the consent of the Land Control Board in place of the Respondent in respect of land parcels No. BUGUMBE/MABERA/1292 and BUGUMBE/MABERA/1293 all measuring approximately 2.6 Ha and mutation forms, if any, for purposes of their transfer in favour of the Applicants.** 4. Since costs follow event, the court exercises its discretion and awards them to the applicants. 5. It is so ordered. **Ruling dated, signed and delivered virtually via the Teams Platform this 22nd July 2026.** **HON. DR. IUR NYAGAKA** **JUDGE** **In the presence of,** Owino Advocate for the Applicants Mr. Odero Advocate for the Respondent (absent)