[2017] KEELC 3756 (KLR)
The court found that the applicant sought enforcement of a decree arising from a judgment delivered on 8/10/14, which neither the plaintiff nor the defendant had appealed. Both parties' claims of ignorance were dismissed as disingenuous. Since the decree remained valid and unchallenged, the court held that it must...
Source-derived case information.
- Citation
- [2017] KEELC 3756 (KLR)
- Parties
- Plaintiff: Solomon Kirubara Mbui; Defendant: Jennifer Mwarania Ikabu (as legal representative of Ikabu Mbui); Interested Party: Lucy Agnes Nthiori
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 102 of 2008
- Procedural Posture
- Civil Suit / Ruling on Post Judgment Enforcement Application
- Outcome
- Application allowed; enforcement orders granted.
- Judges
- LN Mbugua
- Legal Topics
- Boundary Disputes, Enforcement of Judgments, Land Parcel Identification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Kirubara Mbui
Plaintiff
Jennifer Mwarania Ikabu (as legal representative of Ikabu Mbui)
Defendant
Lucy Agnes Nthiori
Interested Party
Procedural Posture
Civil Suit / Ruling on Post Judgment Enforcement Application
Legal Issues
- 1 Whether the initial boundaries between LR No. NTIMA/NTAKIRA/2687 and NTIMA/NTAKIRA/2688 should be restored as per the judgment of 8/10/14.
- 2 Whether the plaintiff and defendant have defied the court's injunction and encroached on the interested party's land.
- 3 Whether the decree arising from the judgment of 8/10/14 should be enforced.
Ratio Decidendi
The court found that the applicant sought enforcement of a decree arising from a judgment delivered on 8/10/14, which neither the plaintiff nor the defendant had appealed. Both parties' claims of ignorance were dismissed as disingenuous. Since the decree remained valid and unchallenged, the court held that it must be enforced. The appropriate remedy was to restore the initial boundaries between the disputed parcels by a licensed surveyor, with police security to ensure compliance. Costs were ordered to be in the cause.
Court Disposition
Application allowed; enforcement orders granted.
Orders
- The initial boundaries between land parcels NTIMA/NTAKIRA/2687 and NTIMA/NTAKIRA/2688 to be marked out by a licensed surveyor.
- The OCS Meru Police Station to provide security during the boundary marking exercise.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ENVIRONMENT AND LAND COURT
CIVIL SUIT NO. 102 OF 2008
SOLOMON KIRUBARA MBUI................................................PLAINITFF
VERSUS
JENNIFER MWARANIA IKABU
(AS LEGAL REPRESENTATIVE OF IKABU MBUI)............DEFENDANT
LUCY AGNES NTHIORI …....................................INTERESTED PARTY
RULING
1. This Ruling is in respect of the application of 03:02:17 where Lucy Agnes Nthiori, the Interested Party prays for orders:-
(1) That the Honourable Court be pleased to issue an order to the Plaintiff and the defendant to be complied to return the initial boundaries between LR No. NTIMA/NTAKIRA/2687 and NTIMA/NTAKIRA/2688.
(2) THAT the OCS Meru Police Station be served with this order for compliance.
(3) That the cost of this application be provided for.
The Application is based on the grounds :
(1) THAT the applicant and the defendant has ploughed the whole land there by removing the bacons between LR No. NTIMA/NTAKIRA/2687 & NTIMA/NTAKIRA/2688.
(2) THAT the Plaintiff and the defendant has encroached my parcel of land No. NTIMA/NTAKIRA/2687.
(3) THAT dispute order of injunction issued by this Honourable Court the Plaintiff and the defendant has defied the same.
(4) THAT the cost of this application be provided for.
3. When application came before me on 2/3/17 for the first time, I found no evidence of service. I hence directed the matter to be put off to 3/4/17. On 3/4/17 ,all parties were present by 12. 00pm.Neither the plaintiff nor the defendant had filed any response to the present application. The court had asked the plaintiff and defendant what they had to say about this matter and if they were aware of the judgment of this court delivered on 8/10/14. They replied as follows:-
4. PLAINTIFF
‘’I do not know about this case, I was not present when the Judgment of 8/10/14 was delivered. I now cant remember if I was present or not. I have never had a counsel, I have never appealed. I actually had a lawyer who appealed. I want to engage a lawyer as I was served late.”
5. DEFENDANT
“I am not aware of the judgment of the court of 8/10/14. I was present when the judgment was delivered. I never appealed against that judgment”.
6. It is quite apparent that Applicant is trying to enforce the decree arising from the judgment of 8/10/14 .It is also clear that both plaintiff and defendant are still being crafty, feigning ignorance of the content of the judgment. The two have not appealed against the said judgment hence the decree must be enforced.
7. I therefore allow the application in the following terms:-
1) The initial boundaries as between land parcels NTIMA/ NTAKIRA 2687 and NTIMA/NTAKIRA 2688 to be marked out by a licensed surveyor.
2) The OCS Meru Police Station to provide security during the exercise.
6. Costs in the cause.
DELIVERED IN OPEN COURT AT MERU THIS 26TH APRIL, 2017 IN THE PRESENCE OF:-
CA: Janet
Solomon Kirubara- Plaintiff
Jennifer Mwarania Ikabu-Defendant
Lucy Agnes Nthiori- Interested Party
HON. L. N. MBUGUA
JUDGE