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ELCPartially AllowedNot stated in the judgment (Bungoma ELC suit; decree dated 25th June 2019)· [2019] KEELC 679 (KLR)

Wilson Kaiga Gidion Gudahi (Suing as the legal representative of the Estate of the late Gideon Livoi Gideon) v Daniel Livoi Gideon [2019] KEELC 679 (KLR)

Environment and Land Court
21 November 2019
BOBoaz N. Olao
923 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan landowner who refuses to sign transfer documents after losing a case cannot stop the court from enforcing the judgment on its own.

What this practically means

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Executive summary

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By a judgment delivered on 23rd May 2019, the Environment and Land Court at Bungoma (Boaz N. Olao, J) cancelled titles to land parcels BUNGOMA/KAMAKOIWA/2045, 2046 and 2047 so they reverted to BUNGOMA/KAMAKOIWA/577, held that the defendant held that parcel in trust for himself, the plaintiff and other beneficiaries, and determined the trust by directing registration of 7 acres to the plaintiff, 7 acres to the defendant, and the remainder to the plaintiff in trust for ROIDA (JOY) JENDEKA MUDULIA and BEN GWAMBELA to be shared equally. Each party was to bear their own costs. No appeal was filed and a decree was extracted on 25th June 2019. The plaintiff then moved the court by Notice of Motion dated 26th September 2019 under sections 3 and 3A of the Civil Procedure Act, seeking a vesting order over 7 acres and the remaining portion, authority for the Deputy Registrar to sign the transfer documents on behalf of the defendant, a direction that the Land Registrar and County Land Surveyor survey and sub-divide the parcel in accordance with the decree, and police security during the exercise. The application was served on the defendant's advocates, who accepted service under protest; the defendant neither filed a response nor attended court, so the application was unopposed. The court held that the plaintiff and the other beneficiaries could not enjoy the fruits of the judgment unless the land was shared out as directed, and that since the defendant refused to sign the relevant documents, it was proper to grant the orders sought. The application was allowed in its entirety, with no orders as to costs, the Land Surveyor and Registrar directed to sub-divide the parcel, the OCS Mukuyuni Police Station to provide security, and the Deputy Registrar authorised to sign all relevant documents on behalf of the defendant.

Key legal issues

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Enforcement of a decree ordering sub-division of trust land where the defendant refuses to sign transfer documents

Holding

The court allowed the application and issued survey, sub-division, vesting and execution orders, including authorising the Deputy Registrar to sign documents on behalf of the defendant and police security for the exercise.

Reasoning

The judgment of 23rd May 2019 determined a trust and directed sub-division of BUNGOMA/KAMAKOIWA/577, but no appeal was filed and a decree was extracted on 25th June 2019. The defendant refused to sign the documents needed for sub-division, and the application was unopposed, the defendant neither attending court nor filing a response. The court held the beneficiaries could not enjoy the fruits of the judgment unless the land was shared out, and it invoked its powers under sections 3 and 3A of the Civil Procedure Act to make the orders sought.

p. 2

Legal principles established

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  • A party who resists signing documents to give effect to a decree cannot defeat the judgment; the court may authorise the Deputy Registrar to sign the relevant documents and direct vesting, survey and sub-division.
  • A litigant and the beneficiaries of a judgment cannot enjoy its fruits unless the land is shared out as directed by the decree.

Court orders

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  1. 1.The Land Surveyor and Registrar Bungoma to visit land parcel NO BUNGOMA/KAMAKOIWA/577 and sub-divide it into: one portion measuring 7 acres to be registered in the names of the plaintiff; one portion measuring 7 acres to be registered in the names of the defendant; and the remainder to be registered in the names of the plaintiff to hold in trust for ROIDA (JOY) JENDEKA MUDULIA and BENNAH GWAMBEZA equally
  2. 2.The OCS Mukuyuni Police Station to provide security during the exercise
  3. 3.The Deputy Registrar to sign all the relevant documents on behalf of the defendant to facilitate the vesting orders and transfer
  4. 4.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 3
  • Civil Procedure ActSection 3A
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act (inherent power to give effect to the court's decree)

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, "Wilson Kaiga Gidion Gudahi (Suing as the legal representative of the Estate of the late Gideon Livoi Gideon) v Daniel Livoi Gideon [2019] KEELC 679 (KLR)", Case Analysis (2019). Not stated in the judgment (Bungoma ELC suit; decree dated 25th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/679/eng@2019-11-21

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