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ELCPartially AllowedChuka High Court Civil Appeal (from Chuka CMCC No. 62 of 2018)· [2019] KEELC 2109 (KLR)

Stanley Nyaga M’Bei & another v M’Bei Kiraithe [2019] KEELC 2109 (KLR)

High Court of Kenya at Chuka
31 July 2019
PNP. M. Njoroge
788 words in judgment
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The bottom line

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A Kenyan father agreed in the High Court to transfer two family land parcels to his sons, and the court's judgment enforces that promise if he delays.

What this practically means

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Executive summary

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This was an appeal to the High Court at Chuka against a ruling of Hon. J. M. Njoroge, CM delivered on 6th February 2019 in Chuka CMCC No. 62 of 2018, in which the trial magistrate had upheld a preliminary objection and held the suit res judicata vis-a-vis Meru High Court Misc Application No. 102 of 2004. The appellants, sons of the respondent, mounted a seven-ground memorandum of appeal contending that the trial magistrate erred on res judicata, on the representative capacity of Caroline Mukwamugo for the late Erick Mugambi, on the proper content of a preliminary objection, in denying them a hearing contrary to natural justice, and in disregarding binding authorities cited. They sought allowance of the appeal, setting aside of the ruling of 6th February 2019, and an order that CMCC No. 62 of 2018 be listed for hearing, with costs. The appeal was, however, never argued on the merits. At a directions hearing the parties agreed to settle out of court; on 10th July 2019 each appellant disclosed having given his father Kshs.15,000/=, and the father agreed to transfer Land Parcel No. Mwimbi/South Mugumango/1849 (about 2 acres) to the 1st appellant and Land Parcel No. Mwimbi/South Mugumango/1852 (approximately 2 acres) to the 2nd appellant. The respondent confirmed resolution of all issues and asked the court to record judgment. The court entered judgment in those terms, empowered the Deputy Registrar to execute documents if the respondent defaulted within three months, dispensed with production of the title deeds, ordered each party to bear their own costs, and deemed the appeal heard and determined definitively.

Key legal issues

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Disposal of an appeal by consent following out-of-court family settlement

Holding

Judgment was entered recording the settlement whereby the respondent father was to transfer the two suit land parcels to his two sons, with the Deputy Registrar empowered to execute documents in default

Reasoning

The parties had agreed to settle out of court. Each appellant gave his father Kshs.15,000/= and the father agreed to transfer approximately two-acre parcels, Mwimbi/South Mugumango/1849 to the 1st appellant and Mwimbi/South Mugumango/1852 to the 2nd appellant. The respondent confirmed all outstanding issues were resolved and asked the court to record judgment, which the court did, dispensing with production of title deeds in default and ordering each party to bear their own costs.

p. 2

Legal principles established

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  • Where parties to an appeal reach a settlement and the court records it, judgment is entered in the terms agreed, including machinery for execution in default

Court orders

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  1. 1.The respondent M'Bei Kiraithe is to transfer Land Parcel No. Mwimbi/South Mugumango/1849 to the 1st Appellant, Stanley Nyaga M'Bei, within 3 months of the judgment, failing which the Deputy Registrar is empowered to execute all documents necessary and the concerned Land Registrar shall dispense with production of the Title Deed
  2. 2.The respondent M'Bei Kiraithe is to transfer Land Parcel No. South Mugumango/1852 to the 2nd Appellant, Calvin Gitonga M'Bei, within 3 months of the judgment, failing which the Deputy Registrar is empowered to execute all documents necessary and the concerned Land Registrar shall dispense with production of the title deed
  3. 3.Each party to bear their own costs
  4. 4.The appeal is deemed heard and determined definitively
On appeal from
Chief Magistrate's Court at Chuka
CMCC No. 62 of 2018
Jurisdiction invoked
First appellate jurisdiction over rulings of the Chief Magistrate's Court at Chuka

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, "Stanley Nyaga M’Bei & another v M’Bei Kiraithe [2019] KEELC 2109 (KLR)", Case Analysis (2019). Chuka High Court Civil Appeal (from Chuka CMCC No. 62 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2109/eng@2019-07-31

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