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ELCAllowedNot stated in judgment (application dated 20th January 2017 in the suit)· [2017] KEELC 2985 (KLR)

Helen Nekesa Nielson & another v Dorothy Nelima Wafula & another [2017] KEELC 2985 (KLR)

Environment and Land Court
8 May 2017
AOA. Omollo
869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The plaintiffs obtained a judgment on 15th June 2015 (delivered by Mukunya J) declaring the suit property, KWALE DIANI EBACH BLOCK/372, held by the plaintiffs and the defendants as tenants in common in equal shares (1/4 each), with the property to be surveyed and the plaintiffs receiving a half share. When their appointed surveyor was denied access to the property by the 2nd defendant in January 2017, the plaintiffs filed an application dated 20th January 2017 seeking orders for survey and partition, restraining the 2nd defendant from obstructing the survey, and police assistance. The defendants opposed the application, arguing it was brought in bad faith given a pending appeal (Court of Appeal Case No. 50 of 2016) and an alleged stay of execution pending filing of the appeal. In oral submissions, the respondents contended the application was premature because, as tenants in common with equal rights, they were entitled to a say in the choice of surveyor, the cost of the survey, the date of survey and the physical position on the ground. The court found no stay of execution had been produced, holding that the pendency of an appeal per se does not amount to a stay under Rule 5(2)(b) of the Court of Appeal Rules. The court further held that the decree did not require the parties to agree on the surveyor, date or physical position, and that the respondents' demands amounted to an attempt to vary the judgment. Finding merit in the application, the court granted the survey and partition orders, restrained obstruction, directed the surveyor to give at least 3 days' notice of the site visit (at which the respondents' surveyor could be present), directed the O.C.S Diani Police Station to provide security, and awarded the costs of the application to the applicants.

Key legal issues

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01

Effect of a pending appeal on execution of a judgment

Holding

The pending appeal in Court of Appeal Case No. 50 of 2016 did not bar execution because no stay of execution had been issued by the Court of Appeal; the respondents produced no document evidencing a stay.

Reasoning

The court noted that under Rule 5(2)(b) of the Court of Appeal Rules, an appeal does not automatically stay execution. The defendants alleged a stay had been granted but annexed no documentation. Absent a stay, either party was at liberty to execute the judgment of 15th June 2015, which had not been varied or set aside.

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02

Whether the application was premature because tenants in common have equal rights

Holding

The application was not premature; the judgment did not require the parties to agree on the surveyor, the date of survey or the physical position on the ground, and requiring such agreement would amount to varying the judgment.

Reasoning

The court held that the respondents' demands went beyond the terms of the decree. The decree required survey and partition with costs of survey shared, but the parties could share costs or one could meet the entire cost and recover it later. The plaintiffs only needed to notify the defendants of the surveyor's details, costs and date of visit; the hostility between the parties justified court assistance.

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Legal principles established

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  • The pendency of an appeal per se does not operate as a stay of execution.
  • A party executing a decree for survey and partition against tenants in common is not thereby asserting greater rights than the other parties.

Court orders

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  1. 1.Survey and partition of KWALE DIANI EBACH BLOCK/372 in the names of the four tenants in common (Hellen Nekesa Nielsen, Paul Fredrick Nielsen, Dorothy Nalima Wafula and the Estate of Johannes Friedrick Wilhelm Lowe) be effected
  2. 2.The 2nd defendant and/or her agents, servants and assigns shall not resist, obstruct or stop the survey and partition and shall not intimidate or show violence against the surveyors
  3. 3.The surveyor appointed by the applicant may visit the suit premises on any convenient date after giving the respondents at least 3 days notice before the site visit
  4. 4.The respondents are at liberty to have their own surveyor present on that date
  5. 5.The O.C.S Diani Police Station is directed to provide security
  6. 6.Costs of the application awarded to the applicants

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
Jurisdiction invoked
Supervisory and execution powers of the High/Environment and Land Court to enforce its own decree (undertaking inherent jurisdiction; no specific provision cited)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Helen Nekesa Nielson & another v Dorothy Nelima Wafula & another [2017] KEELC 2985 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 20th January 2017 in the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2985/eng@2017-05-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.