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ELCAllowed· [2018] KEELC 480 (KLR)
Deborah Achieng Aduda & Rene John Dierkx v Florence Seyanoi Kibera also known as Dorothy Seyanoi Moschion (Environment & Land Case 1047 of 2013) (Environment and Land) [2018] KEELC 480 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#By a judgment delivered on 27/9/2017, the Environment and Land Court granted specific performance compelling the Defendant to perform her obligation under a sale agreement dated 16/2/2012 by subdividing and excising one acre from L.R. No. 5898/22 and transferring it to the Plaintiffs within 30 days, failing which the Director of Surveys and the Registrar of Titles were to execute the necessary documents. A ruling of 28/6/2018 dismissed the Defendant's application to set aside the judgment and stay execution. The Plaintiffs then filed the application dated 30/10/2018 seeking orders that the Deputy Registrar of the Environment and Land Court, Nairobi sign and execute the documents forwarded by the Director of Surveys vide a letter of 8/10/2018, including the survey plan, scheme plan and surveyors report, the Director of Surveys having taken the position that the documents required endorsement by the Registrar before finalising the subdivision. The Defendant opposed through a replying affidavit sworn by her advocate, arguing she has an arguable appeal which would be rendered nugatory. K. Bor J allowed the application, reasoning that no stay of execution had been issued by the Court of Appeal and that, if the appeal succeeded, the Court of Appeal could direct that the excised acre be returned to the Defendant. The ruling was delivered at Nairobi on 6th December 2018.
Key legal issues
#01
Whether the Defendant's intended appeal warrants declining to execute the judgment
Holding
The application was allowed because no stay of execution had been issued by the Court of Appeal, and the risk to the Defendant is mitigated because restitution is available if the appeal succeeds.
Reasoning
The Defendant argued she has an arguable appeal and that allowing the application would render it nugatory. The court noted that no stay orders had been issued by the Court of Appeal, so execution of the judgment could lawfully proceed. It further reasoned that the Court of Appeal could, if the appeal succeeded, direct that the excised acre be returned to the Defendant, so the appeal would not be rendered nugatory.
p. 2
Legal principles established
#- Where no stay of execution has been issued by the Court of Appeal, the trial court may proceed to effect execution of its judgment, and any successful appeal can be remedied by restitution.
Court orders
#- 1.The application dated 30/10/2018 is allowed
- 2.The Deputy Registrar of the Environment and Land Court, Nairobi to sign and execute the documents sent to the court by the Director of Surveys vide the letter of 8/10/2018, including the survey plan, the scheme plan and the surveyors report
- Jurisdiction invoked
- Not stated in the judgment; the court proceeds on its inherent and supervisory powers over execution of its own decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Deborah Achieng Aduda & Rene John Dierkx v Florence Seyanoi Kibera also known as Dorothy Seyanoi Moschion (Environment & Land Case 1047 of 2013) (Environment and Land) [2018] KEELC 480 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/480/eng@2018-12-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.