https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3726

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI, NAIROBI** **ELCA 2 OF 2022** **(FORMERLY CIVIL APPEAL NO. 18 OF 1977)** **SAMUEL KURIA GITEE (Suing as the Legal Representative of the Estate of Ruth Wambui Gitee - Deceased)......................................APPLICANT** **-VERSUS-** **HUMPHREY GITHAIGA MUIRU (Legal Representative of the Estate of Jacob Muiru Gikanga Deceased)…………………….….RESPONDENT** **RULING** 1. The matter before the Court is the Notice of Motion dated **3rd March 2026** brought under the provisions of Sections **1A, 1B and 3A of the Civil Procedure Act, Article 159** of the Constitution of Kenya, and all other enabling provisions of the law. 2. In the application, the Applicant seeks the following orders: 3. **THAT** an Order be directing the Respondent to implement Orders of this Court by sub-dividing the suit land **Limuru/Bibirioni/1252** and occasion transfer of two acres as directed by the Orders of Court of **Appeal Civil Appeal No. 18 of 1977** issued on **20th March 1991**, failure to which the same shall be executed by the Applicant at the cost of the Estate of Jacob Muiru Gikanga (Deceased) and the Deputy Registrar be authorized to sign all relevant enabling land registration documents. 4. **THAT** costs of this application be awarded. 5. The application is supported by the affidavit of Samuel Kuria Gitee sworn on 3rd March 2026 together with the annexures thereto. The Applicant depones that he is the legal representative of the Estate of Ruth Wambui Gitee (Deceased) pursuant to a Grant of Letters of Administration Ad Litem issued in Kiambu **Succession Cause No. E122 of 2023.** 6. He avers that the Respondent is the administrator of the Estate of Jacob Muiru Gikanga (Deceased) having been issued with Letters of Administration Intestate in Nairobi High Court Succession Cause No. 2622 of 1999. According to the Applicant, both parties are therefore properly before the Court in their representative capacities and are competent to prosecute and defend matters touching on the respective estates. 7. The Applicant further states that in **Civil Appeal No. 18 of 1977,** the Court of Appeal rendered its judgment on 20th March 1991 and ordered, among other reliefs, that the parcel of land known as Limuru/Bibirioni/1252 be subdivided and that two acres thereof be lawfully transferred and registered in favour of Ruth Wambui Gitee, now deceased. He contends that the said judgment conclusively determined the rights of the parties and remains valid, binding and enforceable to date, having never been set aside, reviewed or varied by any court of competent jurisdiction. 8. It is further deponed that prior orders of the Court cancelling subdivisions affecting the suit property had already been implemented by the registered proprietor in readiness for the full execution of the Court of Appeal judgment. In support of this assertion, the Applicant annexed an official search relating to Limuru/Bibirioni/1252 which, according to him, demonstrates that the title was restored to a position that would facilitate compliance with the decree issued by the appellate court. The Applicant therefore maintains that there exists no legal or practical impediment preventing implementation of the orders issued more than three decades ago. 9. The Applicant further avers that Jacob Muiru Gikanga (Deceased) passed away before effecting the transfer ordered by the Court. Consequently, Ruth Wambui Gitee (Deceased) was unable to realize the fruits of the judgment during her lifetime and had to await the conclusion of succession proceedings relating to the estate of the deceased judgment debtor. 10. He states that following the appointment of the Respondent as administrator of that estate, the Respondent assumed the legal duty and responsibility of administering the estate in accordance with the law, including compliance with court decrees affecting the estate. The Applicant contends that despite the lapse of considerable time and despite assurances allegedly given by the Respondent, the decree remains unimplemented. 11. The Applicant finally contends that the continued failure to execute the judgment of the Court has occasioned grave prejudice to the Estate of Ruth Wambui Gitee by denying it the benefit of a decree lawfully obtained and affirmed by the Court of Appeal. He urges the Court to compel the Respondent to discharge his obligations as administrator by effecting the subdivision and transfer ordered by the Court. In the alternative, he seeks leave for the Applicant to undertake the execution process at the expense of the Estate of Jacob Muiru Gikanga, with the Deputy Registrar being authorized to execute all necessary transfer and land registration documents should the Respondent fail or refuse to do so. 12. Despite service, the Respondent did not file any response to the application and the same therefore proceeded unopposed. The application was canvassed by way of written submissions filed by the Applicant. 13. In his submissions, the Applicant urged the Court to intervene and facilitate execution of the decree issued on 20th March 1991, contending that the failure by the Respondent, as administrator of the Estate of Jacob Muiru Gikanga, to complete the subdivision and transfer of two acres out of Limuru/Bibirioni/1252 had continued to deny the Estate of Ruth Wambui Gitee the fruits of a long-standing judgment. The Applicant submitted that the Respondent’s internal disagreement with other beneficiaries of the estate could not lawfully defeat or delay compliance with a valid court order. 14. Reliance was placed on **Section 98 of the Civil Procedure Act**, which empowers the Court to nominate a person to execute conveyances or other documents where the person required to do so neglects or refuses to comply, and on **Yahya Said** **Yahya Vs The Kenya Times Media Trust [2008] eKLR**, for the proposition that the Court may invoke its inherent jurisdiction where necessary to prevent injustice and to ensure that its process is not rendered futile. **Analysis and Determination** 1. I have considered the Notice of Motion dated 3rd March 2026**,** the supporting affidavit, the annexures thereto, and the submissions filed by the Applicant. The sole issue for determination is whether the Applicant has established sufficient grounds to warrant the orders sought. 2. The Court has perused the decree and order arising from Civil Appeal No. 18 of 1977, issued on 20th March 1991. The said order unequivocally allowed the appeal and directed that two acres be lawfully transferred and registered in favour of Ruth Wambui Gitee out of land parcel Limuru/Bibirioni/1252. 3. There is no evidence before this Court demonstrating that the judgment has been set aside, varied, reviewed or otherwise rendered unenforceable. The decree therefore remains valid, binding and capable of execution. 4. The material placed before the Court further shows that both the original litigants have since passed away. The Applicant has exhibited a Grant of Letters of Administration Ad Litem issued in respect of the Estate of Ruth Wambui Gitee, while the Respondent is shown to be the holder of Letters of Administration Intestate in respect of the Estate of Jacob Muiru Gikanga.As personal representatives, they stand in the shoes of the deceased parties and are clothed with the legal capacity to prosecute and defend proceedings affecting the respective estates. 5. It is not disputed that the decree requiring subdivision of Limuru/Bibirioni/1252 and transfer of two acres in favour of Ruth Wambui Gitee has never been implemented. The Respondent, despite being served with the present application, neither filed a response nor offered any explanation for the prolonged non-compliance with the judgment of the Court. The factual averments contained in the supporting affidavit therefore remain uncontroverted. 6. The Court is alive to the principle that a successful litigant is entitled to enjoy the fruits of his or her judgment. The administration of justice would be undermined if court decrees were allowed to remain unimplemented indefinitely without lawful justification. The judgment in question was delivered over three decades ago, and no evidence has been presented to show that compliance is impossible or that any legal impediment exists to prevent implementation of the decree. 7. Section 98 of the Civil Procedure Act grants the Court power, where a person neglects or refuses to execute a document required for giving effect to a decree or order of the Court, to authorize another person to execute the same, with such execution having the same force and effect as if executed by the person originally directed to do so. The provision exists to ensure that court decrees are not frustrated by the inaction or unwillingness of parties bound by them. 8. In the present case, the Court is satisfied that the Respondent, as administrator of the Estate of Jacob Muiru Gikanga, bears the responsibility of ensuring compliance with the decree issued on 20th March 1991**.** The continued failure to effect the subdivision and transfer ordered by the Court has deprived the Estate of Ruth Wambui Gitee of the benefit of a valid judgment for an inordinately long period. In the absence of any opposition to the application or any explanation for the delay, this Court finds no reason to withhold the relief sought. 9. Consequently, I find that the application dated 3rd March 2026 is merited. **Final Disposition** Accordingly, the Notice of Motion dated 3rd March 2026 is allowed in the following terms:- 1. The Respondent shall, within sixty (60) da**ys** from the date hereof, undertake all necessary steps to subdivide land parcel *Limuru/Bibirioni/1252* and transfer **t**wo (2) acres thereof to the Estate of Ruth Wambui Gitee in accordance with the judgment and decree issued on20th March 1991 in Civil Appeal No. 18 of 1977. 2. In default of compliance within the said period, the Deputy Registrar of this Court shall be at liberty to execute all mutation forms, transfer instruments, applications, consents and any other documents necessary to give effect to the decree. 3. Each party shall bear its own costs of the application. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **18th** day of **June, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Mr. Samuel Kuria** for the Applicant **N/A** for the Respondent **Philomena W** Court Assistant