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ELCPartially AllowedNot stated in the judgment· [2020] KEELC 1543 (KLR)

James Gitingu Wamagata & another v David Migichi Kageni [2020] KEELC 1543 (KLR)

Environment and Land Court
28 May 2020
KBK. BOR
258 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi land court ordered its Deputy Registrar to sign transfer documents for a defiant landowner, but refused immediate eviction, insisting the lawful eviction process be followed.

What this practically means

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Executive summary

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This Environment and Land Court ruling by K. Bor J, delivered virtually at Nairobi on 28 May 2020, dealt with an application dated 2 May 2019 and filed on 3 July 2019 by the 1st Plaintiff seeking enforcement of the decree issued on 16 November 2018. By that decree the court had ordered the Defendant to subdivide the suit property, Dagoretti/Kinoo/4176, into two portions, with 0.05 hectares to be transferred to the 1st Plaintiff and the Defendant retaining 0.5 hectares. The 1st Plaintiff, supported by his affidavit, complained that the Defendant refused to cooperate in the subdivision process and that he could not carry out the subdivision himself because the land remained registered in the Defendant's name. He therefore sought orders that the Deputy Registrar of the court execute the documents necessary for the subdivision and subsequent transfer of the 1st Plaintiff's portion, together with a prayer for eviction. The court found the application to have merit and allowed it in terms of prayers 1 and 2, enabling the Deputy Registrar to execute the necessary documents in execution of the decree. However, the court declined the prayer for eviction, holding that the Plaintiff must follow the procedure for eviction under the law. Costs were ordered to be in the cause. Mr. Muchangi Nduati appeared for the Plaintiffs; there was no appearance for the Defendant.

Key legal issues

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01

Execution of decree by way of Deputy Registrar executing transfer documents

Holding

The application had merit and was allowed in terms of prayers 1 and 2

Reasoning

The Defendant had refused to cooperate in the subdivision of the suit property as directed by the court's judgment of 15/10/2018, and the 1st Plaintiff could not effect the subdivision because the land remained registered in the Defendant's name. To give effect to the decree, the court permitted the Deputy Registrar to execute the necessary documents.

p. 2
02

Eviction of the Defendant from the suit property

Holding

The prayer for eviction was declined

Reasoning

The court held that the Plaintiff could not obtain eviction through this application but had to follow the statutory eviction procedure. Enforcement of a decree does not dispense with the lawful eviction process.

p. 2

Legal principles established

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  • A court may direct its Deputy Registrar to execute documents in place of a party who refuses to comply with a decree
  • Eviction must follow the procedure prescribed by law

Court orders

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  1. 1.Application allowed in terms of prayers number 1 and 2 - the Deputy Registrar to execute the documents for subdivision of Dagoretti/Kinoo/4176 and transfer the 1st Plaintiff's portion
  2. 2.Prayer for eviction declined; the Plaintiff directed to follow the procedure for eviction under the law
  3. 3.Costs shall be in the cause
Jurisdiction invoked
Enforcement of the court's decree issued on 16/11/2018 in the pending suit (executive powers of the court over its own 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, "James Gitingu Wamagata & another v David Migichi Kageni [2020] KEELC 1543 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1543/eng@2020-05-28

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