[2018] KEELC 2408 (KLR)
The court found that although judgment had previously been entered in favor of the applicant, the respondent had subdivided and transferred the land to third parties who were not parties to the suit. As a result, the court held that it could not issue orders against individuals who were not before it. The...
Source-derived case information.
- Citation
- [2018] KEELC 2408 (KLR)
- Parties
- Plaintiff: Suleiman Amukoya; Defendant: Shaban Tabu Shikhaya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 257 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application
- Outcome
- application dismissed
- Judges
- NA Matheka
- Legal Topics
- Land Subdivision, Execution of Judgment, Third Party Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suleiman Amukoya
Plaintiff
Shaban Tabu Shikhaya
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the District Land Registrar should be ordered to cancel, nullify, deregister or revoke the sub-division of L.R. NO. S/WANGA/EKERO/2491 and revert it to its original status.
- 2 Whether the court can issue orders affecting third parties who are not parties to the suit.
- 3 Whether the applicant is entitled to the reliefs sought in light of the subdivision and transfer to third parties.
Ratio Decidendi
The court found that although judgment had previously been entered in favor of the applicant, the respondent had subdivided and transferred the land to third parties who were not parties to the suit. As a result, the court held that it could not issue orders against individuals who were not before it. The applicant's remedy, if any, lay in pursuing the third parties directly. The application was therefore dismissed for lack of merit, as the reliefs sought could not be granted in the circumstances.
Court Disposition
application dismissed
Orders
- The application is dismissed with no orders as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 257 OF 2017
SULEIMAN AMUKOYA.........................................PLAINTIFF/APPLICANT
VERSUS
SHABAN TABU SHIKHAYA...........................DEFENDANT/RESPONDENT
RULING
The application is dated 22nd day of October 2014 seeking the following orders:-
1. That the District Land Registrar be ordered to cancel, nullify, deregister and or revoke the sub-division of the registered L.P. NO. S/WANGA/EKERO/4352; 4353 and revert the same to original L.R. NO. S/WANGA/EKERO/2491.
2. That costs be provided for.
The applicant submitted that, he is claiming 1 acre of land from the L.R. NO. S/WANGA/EKERO/2491, which he occupies.That on or about 18th September, 2014, judgment was delivered and it was ordered that the suit land plot NO. S/WANGA/EKERO/2491 be sub-divided and a portion measuring one acre to be transferred to the defendant/applicant herein SHABAN TAABU SHIKHAYA.THAT on or about 22nd September, 2014, he was issued with a decree pursuant to the judgment that was delivered. (Annexed is a copy of the decree marked S.T.J.1).That he visited the lands office Kakamega and discovered that the plaintiff/respondent had illegally fraudulently and contesting sub-divided the L.P. NO. S/WANGA/EKERO/2491 into L.R. NO. S/WANGA/EKERO/4351, 4349, 4355, 4350, 4352, and 4353 and registered into other people’s names without his consent and or knowledge.That he is unable to execute the decree herein at the lands office due to the sub-divisions carried on the L.P. NO. S/WANGA/EKERO/2491. That he now wishes that the District Land Registrar be ordered to revoke, nullify, cancel and or deregister the sub-divisions of the registered L.P. NO.S/WANGA/EKERO/4351, 4359, 4355, 4350, 4352, 4353 and revert the same to original L.R. NO. S/WANGA/EKERO/2491. That he is now requesting the Court for an order that the District Land Registrar be ordered to cancel, nullify, revoke and or deregister the sub-divisions of the registered L.R. NOS. S/WANGA/EKERO/2491.
The respondent submitted that the land had been subdivided and sold to third parties and he is not capable of giving the applicant the one acre as ordered by the court and he intended to appeal against this judgement. The third parties have sued him in another case touching on ownership and subdivision of that land.
This court has carefully considered the application and the submissions therein. It is not disputed that the judgement of the court was in favour of the applicant in this matter. The respondent never appealed. He went ahead during the case and sold the land to third parties after subdivision and is not being sued in Kakamega ELC no 2 of 2015. Court orders must not be in vain. I find that the suit parcel of land has been subdivided and transferred to third parties. The applicant now needs to pursue the said third parties and this court cannot issue orders against individuals not party to this case. I find this application has no merit and I dismiss it with no orders as to costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 10TH DAY OF JULY 2018.
N.A. MATHEKA
JUDGE