https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4093

Tonui v Chepngetich & another (Environment and Land Case 227 of 2001) [2026] KEELC 4093 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4093 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 227 of 2001 OA Angote, J July 2, 2026 Between Philip K Tonui Decree holder and Ruth C Chepngetich 1st Judgment debtor Esther M Wambugu 2nd Judgment debtor Ruling 1.Vide the Notice of Motion dated 25th March, 2025, brought pursuant to the provisions of Section 38 (b) of the Civil Procedure Act, Order 22 Rule 7 (2) and Order 51 Rule 1 of the Civil Procedure Rules, the Decree Holder/Applicant seeks the following reliefs:i.The Honourable Court be pleased to order that the property known as Maisonette numbers 776A and 776B erected on LR No. 209/12912 be sold by public auction in execution of the decree dated 10th January, 2020.ii.The Honourable Court be pleased to settle the terms of sale of the premises known as Maisonette numbers 776A and 776B erected on LR No. 209/12912 on the following terms:i.That the property be sold by public auction by Watts Auctioneers.ii.That the reserve price be set at Kshs. 37,500,000/= or being 75% of the value of the suit propertyiii.That one-third of the proceeds be paid to the Plaintiff/Decree/Holder together with party-to-party costs of Kshs. 585,065/=.iv.That the Plaintiff be paid a sum of Kshs. 13,466,666.7/= equivalent to one third of the rent received from January, 1997 from the proceeds of the sale of the property.iii.Costs of this application be borne by the 1st and 2nd Defendants. 2.The motion is supported by the affidavit of Phillip K. Tonui, the Applicant herein, sworn on even date. He deponed that on 31st October, 2019, this court entered judgment against the Respondents jointly and severally, declaring that he and the Respondents jointly owned L.R. No. 209/12919 as tenants in common in equal shares. 3.The court further ordered the Respondents to render accounts of all rental income received from the maisonettes on the property from January 1997 and directed that the Applicant be paid his one-third share thereof; that the court also directed that the property be valued for purposes of enabling the Respondents to buy out the Applicant’s share, failing which the property is to be sold and the proceeds shared equally and that in addition, the Respondents were restrained from interfering with, or disposing of the suit property pending full settlement of the matter, save as may be necessary for the realization of the decree. 4.According to Mr Tonui, a decree was issued on 10th January, 2020 and remains unsatisfied to date; that following the judgment, he filed a party-and-party bill of costs, which was taxed at Kshs. 585,065.33 and that to facilitate execution of the decree and compliance with the orders of the court, he instructed his advocates to engage a qualified and registered property manager to ascertain and prepare a comprehensive account of the rental income receivable and/or received from the two maisonettes erected on L.R. No. 209/12919 from January 1997 to date which was done. 5.He explained that the 2nd Respondent resides in the United States of America and is therefore outside the jurisdiction of this court whereas the 1st Respondent has remained elusive and has frustrated his efforts to realize the fruits of the judgment. According to him, he has exhausted all available means of compelling the Respondents to satisfy the decree and, in the circumstances, it would be in the interests of justice for the suit property to be sold in accordance with the judgment of the court. 6.The 1st Respondent, Ruth Cheruiyot Chepngetich filed a replying affidavit dated 5th February, 2026. She deponed that she is a retired civil servant allocated house no 776A situated on the property under L.R 209/12919 along Githunguri Road in Kileleshwa Estate, Nairobi; that she is aware that house 776B, the other house on the suit property was allocated to the 2nd Respondent, also a civil servant who is in occupation of her house and that the houses were only available to and were allocated to civil servants. 7.According to Ms Cheruiyot, the Applicant was never a civil servant and as such has no legal right or interest in either house and his attempt to seek recognition and a share in their homes is unfounded and that upon the allocation, the remaining paperwork was left to the Ministry of Lands to process the titles upon payment of the stand premium, costs of the building, ground rent and rates, stamp duty and other incidentals amounting to Kshs 1, 138, 650 collectively referred to as allotment costs which were shared equally between her and the 2nd Respondent. 8.She explained that she made out a cheque for half of the allotment costs being Kshs 569, 325 which cheque was collected by the Applicant as her agent to pay to the Ministry of Lands; that she is aware that the 2nd Respondent also issued a cheque for similar amount towards payment of allotment costs which the Applicant collected as the 2nd Respondent’s agent and that the Applicant did not pay any such sum and did not disclose to her that he had a personal interest on the suit property. 9.She deponed that the two houses are erected on L.R. No. 209/12919 and that she and the 2nd Respondent had commenced the process of subdividing the property into separate titles when they discovered that the Applicant's name had been included as a proprietor. 10.According to her, apart from never having served in the civil service, the Applicant had never been allocated any of the houses on the property, nor ever occupied the suit premises. She stated that the appearance of his name on the title came as a surprise and upon inquiring, she learned that the Applicant had collected the original title and declined to surrender it, thereby frustrating the intended subdivision of the property. 11.She further deponed that the Applicant had initially been introduced to her by the 2nd Respondent’s late husband as a person with connections at the Lands Office who could assist in processing the title documents; that they allegedly agreed to pay him Kshs. 300,000 as commission for facilitating the process, and that acting in good faith, she furnished him with all the relevant documents in her possession and paid, through him, the monies required by the Ministry of Lands together with additional sums to cater for his expenses in following up the matter. Despite this, he never delivered the title to the suit property to her. 12.It was her contention that the Applicant fraudulently caused his name to be inserted in the allotment letters, official receipts and related records as evinced by investigations at the Lands Office, that he had even purported to write correspondence on behalf of the Respondents and that she also discovered a letter allegedly authored by the Applicant seeking the allotment of a plot jointly to herself, the Applicant, and one Langat R, a person unknown to her. 13.In her view, these matters raise serious questions concerning the legitimacy of the Applicant's claim and the manner in which his name came to be reflected in the title documents. 14.She also challenged the authenticity of a Memorandum of Understanding dated 16th July 1997, allegedly executed before Chepleting Mitei Advocate and relied upon in obtaining judgment. She asserted that the document was a forgery, pointing to inconsistencies in the fonts, formatting, continuity of the pages, and the signatures appearing thereon, including the purported advocate's signature. She therefore urged the court to review and set aside the judgment founded on that document. 15.With regard to the Applicant's monetary claims, she denied ever receiving rental income from the property and described the Applicant's rental assessment and claim for Kshs. 13,466,667 as fictitious and exaggerated. She contended that any assessment of rental income would have to take into account the substantial expenses incurred in maintaining, repairing, renovating, securing, and managing the property, together with the payment of rates and land rent. She further disputed the valuation report relied upon by the Applicant, stating that she had commissioned her own valuation which placed the property's value at approximately Kshs. 72 million. 16.She averred that she had undertaken extensive renovations and improvements to the property over the years, the most recent of which cost Kshs. 8,689,180. In her view, any assessment of sums due to the Applicant must take into account the costs incurred in acquiring, maintaining, and improving the property, including the allotment costs and other outgoings borne by the Respondents. She maintained that such an exercise would require a comprehensive judicial inquiry and could not properly be undertaken through the present application. 17.Finally, she denied refusing to comply with any lawful court decree and opposed the Applicant's attempt to execute against the property through sale by auction. She contended that the proposed execution was oppressive, would occasion irreparable loss to her and her family, and was not contemplated by the judgment delivered on 31st October 2019. 18.According to her, the judgment envisaged a valuation of the property and the possibility of compensating the Applicant for any proven interest, but did not authorize an auction or permit the Applicant to unilaterally determine the rental income allegedly due to him. 19.The 2nd Respondent initially filed a response sworn by Sella Wanjiku dated 6th February, 2026. As at the time, the said Sella Wanjiku had yet to be issued with the requisite authority to swear the affidavit. 20.On 3rd June, 2026, Counsel for the 2nd Respondent informed the court that the High Court had granted them the order substituting Ms Sella Wanjiku. By consent, Ms Wanjiku was substituted with the 2nd Respondent herein and the 2nd Respondent was granted 14 days to respond to the motion and file submissions. As at 18th June, 2026 no response was on record. 21.In a further affidavit dated 2nd March, 2026, the Applicant deponed that the 1st Respondent’s replying affidavit was largely an attempt to reopen and re-litigate issues that had already been conclusively determined by the court, contrary to the principle of finality of judgments. 22.He further deponed that the 1st Respondent improperly invites the court to review the judgment delivered in 2019 without moving the court in the prescribed manner. According to the Applicant, the 1st Respondent has not demonstrated any intention to satisfy the decree or comply with the court’s directions since 2019 and has instead continued to frustrate its implementation, as evidenced by her response to the application. 23.Regarding the costs and expenses referenced, the Applicant stated that he was agreeable to the assessed allotment fees paid in respect of the suit property being taken into account in determining the value of his share in the property. 24.The Applicant contended that although the 1st Respondent alleged having undertaken extensive renovations to the property, she had not produced any receipts, invoices, or other documentary evidence to enable the court ascertain the value of the alleged improvements. 25.He explained that having reviewed the 1st Respondent’s valuation report marked “RCC-6”, particularly the section dealing with estimated rental income from January 1997 to July 2025, the same appeared to assess only one unit of the property and further misstated the applicable rental period by treating the years 1997 and 1998 as a single year rather than two distinct years. Nonetheless, he urged that the court should direct the cross-examination of the valuers to assist in determining the actual value of the suit property. 26.He maintained that the 1st Respondent had not produced any receipts or documentary evidence in support of the alleged renovations and improvements. Consequently, he contended that the bill of quantities relied upon by the 1st Respondent was unsupported and of little evidential value. He acknowledged that there were outstanding assessed allotment fees and land rates relating to the suit property and expressed his willingness to have the same taken into account in calculating any sums due to him. 27.Mr Tonui asserted that the intended execution process was being undertaken in furtherance of the decree issued on 10th January 2020, particularly paragraph 3 thereof, which contemplated the sale of the suit property in the event that the parties were unable to agree on the buy-out mechanism provided in the judgment. Despite efforts being made to involve the Respondents in the execution process and to secure their participation in implementing the decree, it was deposed that no response had been received from them regarding their willingness to comply with or give effect to the court’s orders. Submissions 28.The Applicant filed written submissions dated 28th May 2026. Counsel submitted that a valid and enforceable decree exists, having arisen from the judgment delivered by this court on 31st October 2019, which declared that L.R. No. 209/12919 was jointly owned by the Applicant and Respondents as tenants in common in equal shares; that a decree was extracted on 10th January 2020 and that the same has neither been challenged, reviewed nor set aside and remains binding and capable of execution. 29.On the issue of compliance with the decree, counsel submitted that the Respondents had failed and/or refused to comply with the orders of the court since the delivery of judgment. It was contended that the 1st Respondent’s response was an attempt to re-open matters that had already been conclusively determined by the court, with the sole objective of frustrating execution. 30.Counsel further submitted that more than five years had elapsed since the judgment was delivered and that the Respondents had neither purchased the Applicant’s one-third share in the property nor taken any meaningful steps towards satisfaction of the decree. According to counsel, the present application merely seeks to give effect to the judgment and decree of the court. 31.Counsel submitted that the 1st Respondent's allegations regarding renovations undertaken on the property, expenses allegedly incurred in its maintenance, and alternative valuation figures did not constitute a valid basis for resisting execution of the decree. 32.It was argued that such matters merely raised issues concerning the valuation of the property and any adjustments that may be due, which could be addressed separately by the court. Counsel further contended that, apart from the assessed allotment fees of Kshs. 1,138,650 and outstanding land rent of Kshs. 614,258, the other claims advanced by the 1st Respondent were unsupported by documentary evidence, as no receipts, invoices, or other proof of expenditure had been produced. 33.The 1st Respondent filed her submissions on 10th April 2026. Counsel submitted that the application was premature, misconceived and incapable of execution in its present form as the decree issued by the court contemplated further judicial processes before any execution by way of sale could be undertaken. 34.Counsel contended that the Applicant’s attempt to recover Kshs. 13,466,667/= as rental income through execution was procedurally defective. According to counsel, Order (2) of the decree required a judicial process for the taking of accounts to determine any rental income receivable by the Applicant and did not authorize the Applicant to unilaterally assess and declare the amount due to himself. 35.It was further submitted that the Applicant’s prayer seeking settlement of the terms of sale, including the setting of a reserve price of Kshs. 37,500,000, was equally premature as the value of the suit property had not yet been properly ascertained. Counsel argued that valuation was a judicial process contemplated by the decree and could not be undertaken unilaterally by the Applicant to the exclusion of the Defendants. 36.Counsel maintained that while the decree contemplated sale of the property in the event the Respondents were unable to buy out the Applicant’s one-third share, no valuation had been undertaken and no opportunity had been afforded to the Respondents to purchase the Applicant’s interest. Consequently, the application was said to have been brought before compliance with the express terms of the decree. 37.It was submitted that the decree was, in substance, a preliminary decree since it contemplated further steps before a final determination could be achieved. In particular, counsel pointed to the taking of accounts to ascertain rental income and the valuation process intended to facilitate the buy-out option provided in the judgment. Reliance was placed on Order 21 Rule 13 of the Civil Procedure Rules, which provides for decrees directing inquiries into rents and mesne profits and contemplates the issuance of a final decree after such inquiry. Counsel submitted that no such inquiry had been undertaken and that the final decree envisaged by the judgment had therefore not been reached. 38.Counsel further argued that it would be unjust to permit execution by way of auction before compliance with Orders (2) and (3) of the decree. In support of that proposition, reliance was placed on Nahdy vs Omar [2022] KEELC 3987 (KLR), where the court held that an inquiry into accounts was necessary before execution could proceed, and P.K. Wamae & Company Advocates vs Dickson Daniel Karaba [2015] KEHC 595 (KLR), where the court directed parties to take accounts before execution and sale could be permitted. 39.Counsel also relied on In re Hezron Getuma Onsongo t/a Hegeon Auctioneers [2025] KEHC 13443 (KLR), submitting that a court executing a decree cannot go behind or beyond the decree and is limited to enforcing it as issued. It was therefore argued that the court lacked jurisdiction, at the execution stage, to undertake rent assessments or impose substantive terms of sale where such matters remained unresolved under the decree. 40.Counsel further submitted that the decree sought to be enforced was vitiated by fraud. It was argued that a valid decree must be founded upon a valid judgment and that a judgment procured through fraud cannot sustain an enforceable decree. In support, counsel relied on Lazarus Estates Ltd vs Beasley [1956] 1 QB 702 and Steyn vs Ruscone [2025] KEHC 6196 (KLR). Also cited was Macfoy vs United Africa Co. Ltd [1961] 3 All ER 1169 for the proposition that an act founded on a nullity is itself a nullity and incapable of sustaining subsequent proceedings. Analysis and Determination 41.Having considered the Motion and the responses, the sole issue that arise for determination is whether an order should issue directing the sale of the suit property in execution of the judgment delivered herein. 42.Vide the present Motion, the Applicant seeks orders that Maisonette Nos. 776A and 776B erected on L.R. No. 209/12919 be sold by public auction in execution of the decree issued on 10th January 2020. He further seeks directions on the terms of sale, including the appointment of an auctioneer, the reserve price, payment of his one-third share of the sale proceeds, settlement of taxed costs, and payment of rental income allegedly due to him pursuant to the judgment. 43.The Applicant's position is that more than five years have elapsed since the judgment was delivered and the Respondents have neither purchased his share in the property nor taken any meaningful steps towards satisfaction of the decree. He therefore contends that the sale of the property remains the only practical means of realizing the fruits of the judgment. 44.The 1st Respondent opposes the application contending primarily that the decree has not reached a stage where execution by sale can lawfully proceed. She argues that the judgment contemplated further processes, including the taking of accounts in respect of rental income and valuation of the property to facilitate a possible buy-out of the Applicant's share before any sale could be undertaken. 45.The 1st Respondent further challenges the Applicant's entitlement to the reliefs sought, disputes the valuation and rental assessments relied upon, and raises allegations of fraud relating to the manner in which the Applicant acquired his interest in the suit property. 46.Briefly, the Applicant, as Plaintiff, instituted the suit seeking, among other reliefs, a declaration that the suit property, L.R. No. 209/12919, was jointly owned by the himself and the Respondents herein as tenants in common in equal shares. 47.He further sought an order compelling the Respondents to render full accounts of all rental income received from the property from January 1997 and payment to him of his one-third share of the rent collected. He also prayed for a valuation of the suit property, a permanent injunction restraining the Respondents from alienating, transferring, allocating, or otherwise dealing with the property, general damages and costs of the suit. 48.The matter proceeded for hearing and vide its judgment entered on 31st October, 2019, the court found in favour of the Applicant. The court declared that L.R. No. 209/12919 was owned by the Applicant and Respondents as tenants in common in equal shares. The court further ordered the production of full accounts of rental income received from the two maisonettes on the property from January 1997 and directed that the Applicant was entitled to one-third of such rental income. In addition, the court ordered that the suit property be valued with a view to the Respondents buying out the Applicant's one-third share and, if that was not possible, the property was to be sold and the proceeds shared equally amongst the three owners. 49.The starting point is Section 38 of the Civil Procedure Act which provides:“Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—(a)by delivery of any property specifically decreed;(b)by attachment and sale, or by sale without attachment, of any property;(f)in such other manner as the nature of the relief granted may require.” 50.Section 38 grants the court broad and flexible powers to enforce its decrees. The objective of execution proceedings is to ensure that a successful litigant realizes the fruits of a judgment and that court orders do not remain mere declarations devoid of practical effect. Where circumstances justify it, the court may order for the sale of a property as a mode of execution. 51.Before proceeding further, the court notes the numerous assertions advanced by the 1st Respondent concerning the legitimacy of the Applicant's entitlement to the suit property, including allegations relating to the manner in which his name came to be reflected in the title documents, the allocation process, and the circumstances under which judgment was obtained. Those matters, however, are not for determination in the present proceedings. The rights of the parties were conclusively adjudicated by this court in its judgment delivered on 31st October 2019. That judgment remains valid and binding unless set aside on review or overturned on appeal. 52.Having not impeached the judgment, those issues cannot now be reintroduced at the execution stage as a basis for resisting implementation of the decree. 53.In this case, judgment was delivered on 31st October 2019 and a decree subsequently issued on 10th January 2020. There is no dispute that the decree remains valid and unsatisfied. The Applicant is therefore entitled to seek execution thereof. However, execution must always be undertaken in a manner that accords with the terms of the judgment and decree sought to be enforced. An executing court cannot vary, enlarge, or depart from the decree under the guise of execution. Its mandate is confined to giving effect to what was decreed. 54.A careful reading of the judgment reveals that the court granted three substantive reliefs relevant to the present application. First, it declared the parties to be tenants in common in equal shares in L.R. No. 209/12919. Secondly, it ordered the production of full accounts of all rental income received from the two maisonettes on the property from January 1997 and declared the Applicant entitled to one-third thereof. Thirdly, it directed that the suit property be valued with a view to the Respondent’s purchasing the Applicant's one-third share and, only if such buy-out proved impossible, the property be sold and the proceeds shared equally amongst the three proprietors. 55.It is therefore apparent that the judgment contemplated a sequential process. The first step was the ascertainment of the rental income and the taking of accounts. The second was the valuation of the property to facilitate consideration of the buy-out option. It was only upon failure of that mechanism that sale of the property would arise as a means of implementing the decree. Put differently, the sale was not decreed as the primary remedy, but rather, as a contingent remedy to be invoked only after the preceding processes had been undertaken. 56.The question that arises is whether those antecedent steps have been sufficiently undertaken to warrant an order directing the immediate sale of the property. The material placed before the court demonstrates the existence of a substantial dispute regarding both the rental accounts and the valuation of the suit property. 57.The Applicant has produced a valuation report dated 6th February 2025 placing the current open market rental value of the property at Kshs. 210,000 per month, equivalent to Kshs. 2,520,000 per annum. The same report estimates the rental income generated from January 1997 to February 2025 at Kshs. 40,400,000. 58.In contrast, the 1st Respondent has produced a valuation report prepared by Zamek Limited which estimates the rental income from January 1997 to July 2025 at Kshs. 9,410,000. The disparity between the two assessments on rental income is substantial. 59.The dispute is further compounded by the Applicant's contention that the 1st Respondent's valuation considered only one of the maisonettes and misstated the applicable rental period. The 1st Respondent, on her part, disputes the Applicant's assessment and maintains that any inquiry into rental income must take into account the expenses allegedly incurred over the years in maintaining, renovating, securing and preserving the property. 60.Indeed, the Applicant has gone further and sought the cross-examination of the valuers demonstrating that the court is presently confronted with competing expert opinions whose conclusions are vigorously contested by the parties. 61.In those circumstances, the court is not persuaded that it would be prudent to proceed on the basis of either valuation report. To determine the rental income due to the Applicant, settle the terms of sale, fix a reserve price, or direct payment of specific sums founded upon such contested reports would inevitably expose the execution process to further disputes and challenges. 62.More importantly, the valuation contemplated by the judgment was intended to facilitate consideration of the buy-out option granted to the Respondents. That process has not been conclusively undertaken. Equally unresolved is the issue of the rental accounts from which the Applicant's one-third entitlement is to be determined. 63.The court is alive to the fact that the decree has remained unsatisfied for several years and that a successful litigant ought not to be denied the fruits of his judgment indefinitely. Nonetheless, the court must equally ensure that execution proceeds in a manner that is fair, transparent and faithful to the terms of the decree itself. In the circumstances of this case, the interests of justice require that the valuation and accounting process be undertaken on an objective and mutually acceptable basis before the court considers the question of sale. 64.Accordingly, the court declines, at this stage, to order for the immediate sale of the suit property. Instead, the parties are directed, within thirty (30) days of this ruling, to agree on and jointly appoint a single independent valuer of repute to undertake: a valuation of L.R. No. 209/12919 for purposes of determining its current market value; and an assessment of the rental income attributable to the two maisonettes from January 1997 to date. The agreed upon valuer shall file and serve the valuation report within three (3) months of appointment. 65.In default of agreement on the appointment of a valuer within the period specified above, any party shall move the court to appoint an independent valuer whose costs shall in the first instance be shared equally by the parties, subject to further orders of the court. 66.Upon filing of the valuation report, the matter shall be mentioned for further directions regarding the implementation of the decree, including consideration of the buy-out mechanism contemplated in the judgment and, if necessary, the sale of the property. 67.In the circumstances, and save for the directions granted hereinabove, the Notice of Motion dated 25th March, 2025 is hereby struck out with no order as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 2ND DAY OF JULY, 2026.O. A. ANGOTEJUDGEIn the presence of;Mr. Ojiambo for 1st Defendant/RespondentMs Kimornna for Drecree HolderMr. Gathara for 2nd DefendantCourt Assistant: Tracy