[2021] KEELC 3288 (KLR)
The court found that its prior judgment and decree expressly discharged all orders of inhibition, injunction, or stay of execution affecting the suit property, making the 2nd appellant's claim that the applicant must first remove the inhibition baseless. The court held that the applicant, as decree holder, is...
Source-derived case information.
- Citation
- [2021] KEELC 3288 (KLR)
- Parties
- Appellant: Rael Karoki Kiriinya; Appellant: Veronica Ngugi Kiriinya; Respondent: Grace Gapunge; Respondent: Irene Ntui Kithinji; Respondent: Charity Gacheri Ikunyua; Respondent: Johnson Oginga Ojwang
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 3 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Execution Application
- Outcome
- Application allowed in part; operative orders granted for execution of decree and discharge of inhibitions; each party to bear own costs.
- Legal Topics
- Execution of Decree, Land Transfer, Removal of Inhibition, Registration of Land, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rael Karoki Kiriinya
Appellant
Veronica Ngugi Kiriinya
Appellant
Grace Gapunge
Respondent
Irene Ntui Kithinji
Respondent
Charity Gacheri Ikunyua
Respondent
Johnson Oginga Ojwang
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Execution Application
Legal Issues
- 1 Whether the District Land Surveyor and Land Registrar should be directed to execute the decree by subdividing and registering ½ acre in the applicant's name.
- 2 Whether the inhibition, injunction, or caution on the land parcel should be discharged to facilitate execution of the decree.
- 3 Whether the 2nd appellant's claim that the applicant must first remove the inhibition is valid.
Ratio Decidendi
The court found that its prior judgment and decree expressly discharged all orders of inhibition, injunction, or stay of execution affecting the suit property, making the 2nd appellant's claim that the applicant must first remove the inhibition baseless. The court held that the applicant, as decree holder, is entitled to enjoy the fruits of her judgment. Accordingly, the court ordered the discharge of any inhibition, injunction, or caution on the land parcel and directed the District Land Surveyor and Land Registrar to execute the decree by subdividing and registering ½ acre in the applicant's name. Each party was ordered to bear their own costs.
Court Disposition
Application allowed in part; operative orders granted for execution of decree and discharge of inhibitions; each party to bear own costs.
Orders
- Any inhibition, injunction, or caution lodged on land parcel no. ABOTHUGUCHI/KARIENE/3689 is hereby discharged.
- The District Land Surveyor Meru Central District is directed to visit land parcel number L.R ABOTHUGUCHI/KARIENE/3689 and curve out ½ acre thereof.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC APPEAL NO. 3 OF 2019
RAEL KAROKI KIRIINYA..........................1ST APPELLANT
VERONICA NGUGI KIRIINYA.................2ND APPELLANT
VERSUS
GRACE GAPUNGE...........1ST RESPONDENT/APPLICANT
IRENE NTUI KITHINJI...........................2ND RESPONDENT
CHARITY GACHERI IKUNYUA............3RD RESPONDENT
JOHNSON OGINGA OJWANG...............4TH RESPONDENT
RULING
1. The 1st respondent, Grace Gapunge has filed an application dated 12/10/2020 seeking an order directing the District Land Surveyor Meru Central District to visit the land parcel number L.R ABOTHUGUCHI/KARIENE/3689 and curve out ½ acre and the District Land Registrar to register the ½ acre in the names of the applicant, Grace Gapunge effectively executing the decree of this court dated 21st July 2020. The applicant also desires that the costs of the application be borne by the 2nd appellant.
2. The applicant avers that she is the decree holder, where this court had decreed that the 2nd appellant do transfer ½ acre from L.R ABOTHUGUCHI/KARIENE/3689, but the said 2nd appellant has refused to transfer the same. There is a need for the district land surveyor to sub divide the land which is bigger than ½ an acre.
3. The 2nd appellant has opposed the application vide a replying affidavit dated 28/10/2020 averring that in fulfillment of the court order, she sought land control board consent for sub division of the subject parcel in vain as she was informed that inhibition orders and caution orders had been lodged by the applicant herein and it was not true that she has refused to transfer the land to the applicant. To this end, the 2nd appellant avers that there is an official search indicating that the land is inhibited and the applicant has not made a move to have the inhibition removed.
4. I have carefully considered all the arguments advanced by the parties. It is not in dispute that this court delivered a judgment in this matter on 30/4/2020 nor is it in dispute that the said judgment is in favor of the applicant. Further, by the said judgment and the decree dated 21/07/2020, there is an order to the effect that“any orders of injunctionor inhibitionas well as orders of stay of execution in respect to the suit parcels are hereby discharged.”That in itself is self-explanatory and self-executing. The claim by the 2nd appellant that the applicant was required to have the inhibition order lifted is baseless.
5. I do opine that a party must be allowed to enjoy the fruits of their judgment. However for avoidance of doubt, it is hereby ordered as follows;-
1)Any inhibition,injunctionor caution lodged on land parcel no. ABOTHUGUCHI/KARIENE/3689, is hereby discharged.
2)An order is hereby issued directingthe District Land Surveyor Meru Central District to visit the land parcel number L.R ABOTHUGUCHI/KARIENE/3689 and curve out ½ acrethereofand the District Land Registraristo register the ½ acre in the names of the applicant, GRACE GAPUNGEeffectively executing the decree of this court dated 21st July 2020.
3) Each party is to bear their own costs of the application.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 19TH DAY OF MAY, 2021 IN PRESENCE OF:
C/A: Kananu
Mwirigi for 2nd respondent
Mwanzia for 3rd & 4th respondents
Munene for appellants
M/s Murithi for 1st respondent
HON. LUCY. N. MBUGUA
ELC JUDGE