[2016] KEELC 297 (KLR)
The court found that judgment had already been entered in favour of the plaintiff, declaring him entitled to be registered as the proprietor of the suit land by way of adverse possession. The defendant had refused to execute the necessary transfer documents despite the judgment. There was no opposition to the...
Source-derived case information.
- Citation
- [2016] KEELC 297 (KLR)
- Parties
- Plaintiff: Simon Ng'ang'a Njoroge; Defendant: Daniel Kinyua Mwangi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 12 of 2010
- Procedural Posture
- Miscellaneous Application / Post Judgment Application for Execution of Transfer
- Outcome
- Application allowed.
- Judges
- MA Silau
- Legal Topics
- Adverse Possession, Land Transfer, Execution of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Ng'ang'a Njoroge
Plaintiff
Daniel Kinyua Mwangi
Defendant
Procedural Posture
Miscellaneous Application / Post Judgment Application for Execution of Transfer
Legal Issues
- 1 Whether the Deputy Registrar should be ordered to execute transfer documents for land parcel Nyandarua/Kitiri/5558 in place of the defendant who has refused to comply with the judgment.
- 2 Whether the plaintiff is entitled to costs of the application.
Ratio Decidendi
The court found that judgment had already been entered in favour of the plaintiff, declaring him entitled to be registered as the proprietor of the suit land by way of adverse possession. The defendant had refused to execute the necessary transfer documents despite the judgment. There was no opposition to the application and no justification for the defendant's non-compliance. The court held that, in such circumstances, it is proper to invoke the court's power to direct the Deputy Registrar to execute all necessary documents to effectuate the transfer of the property to the plaintiff, ensuring the judgment is not rendered nugatory. The court also awarded costs of the application to the...
Court Disposition
Application allowed.
Orders
- The Deputy Registrar is ordered to forthwith execute all documents and instruments necessary for the transfer of land parcel Nyandarua/Kitiri/5558 to the plaintiff/applicant.
- The applicant shall have the costs of this application.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
HCCC NO. 12 OF 2010
SIMON NG’ANG’A NJOROGE …………….………PLAINTIFF
VERSUS
DANIEL KINYUA MWANGI ………………....RESPONDENT
RULING
(Application to have Deputy Registrar execute transfer forms; judgment entered in favour of the plaintiff; defendant refusing to execute transfer documents; application allowed)
1. The application before me is that dated 18 December 2015. It is an application filed by the plaintiff and it is seeking the following principal order:-
That this Honourable Court be pleased to issue an order compelling the Judgment Debtor/Respondent herein to execute all documents in respect of Nyandarua/Kitiri/5558 to the decree holder/applicant to effect his registration as the proprietor of the said parcel of land within such time as this Honourable Court deems fit. In the alternative , this Honourable Court do direct the Deputy Registrar of the High Court to execute all the instruments and/or documents that will be necessary for the purposes of effecting transfer of Nyandarua/Kitiri/5558 from the judgment debtor/respondent to the decree holder/applicant.
2. This suit was commenced by way of an Originating Summons vide which the plaintiff claimed to be entitled to be registered as the absolute proprietor of the land parcel Nyandarua/Kitiri/5558 by way of adverse possession. The suit was resisted by the defendant and had to proceed for hearing. In a judgment delivered on 30 January 2015, my predecessor, Waithaka LJ, held for the plaintiff.
3. Through this application, the plaintiff has averred that despite the judgment the respondent has failed to transfer the suit property to the plaintiff.
4. The defendant did not file anything to oppose this application. Neither did he, nor his counsel, appear in court during the inter partes hearing of the application. At the hearing of this motion, Mr. Gatonye sought the alternative prayer seeking to have the Deputy Registrar execute the necessary transfer instruments to have the suit property registered in the name of the plaintiff since the defendant has already refused to execute the same.
5. I have considered the application. I have seen that judgment was indeed entered for the applicant. It was held that he is entitled to be declared owner of the suit property. He therefore deserves to be registered as proprietor of the suit land. There is no good reason why the defendant has refused to transfer the suit property to the plaintiff.
6. I have no reason to deny the plaintiff the prayers sought in this application. I order the Deputy Registrar to forthwith execute all documents and instruments necessary for the transfer of the land parcel Nyandarua/Kitiri/5558 to the plaintiff/applicant. The applicant shall also have the costs of this application.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 8th day of March 2016.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of : -
Mr Geoffrey Otieno holding brief for Mr.Gatonye for applicant.
No appearance on part of M/s Munene Chege & Co. for respondent.
CA: Janet
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU