[2018] KEELC 530 (KLR)
The court found that the application was meritorious as it sought to give effect to the judgment delivered on 19th July 2017. The absence of beacons on the land parcels had delayed execution, and the hostility of the judgment debtors further necessitated the intervention of the court. Since the application was...
Source-derived case information.
- Citation
- [2018] KEELC 530 (KLR)
- Parties
- Plaintiff: Silas Mburung’a Mathiu; Plaintiff: Julius Kijogi Mathiu; Defendant: Mathiu Mugane
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 45 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Execution Application
- Outcome
- Application allowed with costs to the applicant.
- Legal Topics
- Execution of Judgment, Land Survey Orders, Identification of Boundaries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Silas Mburung’a Mathiu
Plaintiff
Julius Kijogi Mathiu
Plaintiff
Mathiu Mugane
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Execution Application
Legal Issues
- 1 Whether the court should order a survey to identify beacons on the specified land parcels to facilitate execution of judgment.
- 2 Whether the OCS Kariene police station should provide security during the survey.
- 3 Whether costs should be awarded to the applicant.
Ratio Decidendi
The court found that the application was meritorious as it sought to give effect to the judgment delivered on 19th July 2017. The absence of beacons on the land parcels had delayed execution, and the hostility of the judgment debtors further necessitated the intervention of the court. Since the application was unopposed and the orders sought were necessary for the identification of the specific parcels and enforcement of the judgment, the court allowed the application in full, including provision for police security and costs to the applicant.
Court Disposition
Application allowed with costs to the applicant.
Orders
- A survey shall be conducted on land parcel numbers 3210, 3214, 3211, 3213, and 3212 by a surveyor for the purpose of identifying beacons.
- The OCS Kariene police station shall avail security during the conduct of the survey.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC NO. 45 OF 2007
SILAS MBURUNG’A MATHIU.........................PLAINTIFF
JULIUS KIJOGI MATHIU........................2ND PLAINTIFF
VERSUS
MATHIU MUGANE.......................................DEFENDANT
RULING
1. The application dated 31st May 2018 seeks the following orders
(i) That this Honourable court be pleased to order that a survey be conducted on land parcel no. 3210, 3214, 3211,3213 and 3212 by a surveyor for the purpose of identifying beacons on the parcels of land.
(ii) That this Honourable court be pleased to order the OCS Kariene police station to avail security during the conduct of the survey.
(iii) That costs be provided for.
2. The grounds in support of the application are:
(i) That the execution of judgment delivered by Lady Justice Mbugua in ELC 45 of 2007 dated 19th July 2017 has been delayed due to the fact that the parcels of land lack beacons.
(ii) That the judgment debtors have vehemently opposed any survey of the land and they are hostile.
3. The affidavit dated 31st May 2018 by the applicant to support the claim reads as follows:
(i) That judgment on civil suit no. 45 of 2007 was entered on the 19th day of July 2017 in favour of the defendant.
(ii) That an order of permanent injunction restraining the plaintiff from interfering with parcel no. 3211, 3213, 3212 which parcel were reserved for the defendant and his two daughters was issued.
(iii) That to execute the judgment land parcel nos. 3210, 3214, 3211, 3213 and 3212 ought to be surveyed for purpose of establishing beacons on the parcels of land.
(iv) That the judgment debtors have vehemently opposed any conduct of survey on the aforesaid property, and they have become hostile.
(v) That the decree holder is prejudiced as he is unable to occupy his land.
(vi) That it is in the best interest of justice that the survey is conducted to execute judgment and identify each parcel of land specifically.
4. When the application came up for inte-partes hearing on 3. 10. 2018, the respondent’s side was directed to file their replying affidavit in the course of the day. None was filed. The application is hence unopposed.
5. Further, it is apparent that the application is geared towards giving effect to the court’s judgment delivered on 19. 7.2017.
6. I find that the application is meritorious. The same is allowed with costs to the applicant.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 28TH NOVEMBER, 2018 IN THE PRESENCE OF:-
C/A: Kinoti
Kithaka for respondent
Mutegi for applicant
HON. LUCY. N. MBUGUA
ELC JUDGE