Veronicah Ambatsi v Francis Jomo Shikhole & 2 others [2021] KEELC 3567 (KLR)

Environment and Land Court

21 April 2021

NMN.A. Matheka

605 words in judgment

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AI-assisted case brief

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The bottom line

The court refused to enforce a land decree because the parcel had been subdivided before the suit was filed, and no evidence showed who owned the subdivisions.

What this practically means

Executive summary

The applicant moved the court by notice of motion dated 4th October 2020, brought under Sections 3 and 3A of the Civil Procedure Act and Article 159 of the Constitution, seeking cancellation of all subdivisions arising from parcels Butsotso/Shikoti/16462 and 16463, reinstatement of the original title Butsotso/Shikoti/13352, and registration of a 0.20 hectare portion in the name of Musa Ombayo (Deceased), in fulfilment of a decree issued on 22nd November 2018. The applicant argued that the subdivisions were fraudulent, effected during the pendency of the suit to defeat execution of the decree, and that new evidence - a search certificate - showed the register for the original parcel had been closed. The court found as a fact that the 2018 decree required the 1st defendant to transfer 0.20 hectares from Butsotso/Shikoti/13352. However, the search certificate showed the parcel had been subdivided on 3rd September 2012 into parcels 16462 and 16463, meaning the original parcel did not exist when the suit was filed in 2014. No evidence was adduced as to who owned the subdivisions. The court held that the 2018 decree could not be enforced and that it could not arbitrarily order cancellation of the subdivisions and reinstatement of the original title. The application was dismissed with no orders as to costs. Judgment delivered at Kakamega on 21st April 2021 by N.A. Matheka, J.

Key legal issues

Enforceability of a decree against a parcel whose register was closed before the suit was filed

Holding

The application was not merited; the decree of 22nd November 2018 could not be enforced because the original parcel Butsotso/Shikoti/13352 had been subdivided on 3rd September 2012, before the suit was filed in 2014

Reasoning

The court found as a fact that the decree of 22nd November 2018 required transfer of 0.20 hectares from Butsotso/Shikoti/13352. However, a search certificate showed the parcel was subdivided on 3rd September 2012 into parcels 16462 and 16463. Since the suit was filed in 2014, the original parcel did not exist at filing, and no evidence showed who owned the subdivisions, so enforcement orders could not issue.

p. 2

Legal principles established

A court cannot arbitrarily order the cancellation of titles arising from a subdivision where the original parcel no longer existed at the time of filing suit and no evidence is adduced as to ownership of the resultant parcels

Court orders

1.The application dated 4th October 2020 is dismissed
2.No orders as to costs

Authorities

Legislation

Civil Procedure ActSections 3A and 3
Constitution of Kenya, 2010Article 159

Jurisdiction invoked: Section 3A and 3 of the Civil Procedure Act; Article 159 of the Constitution of Kenya, 2010

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Veronicah Ambatsi v Francis Jomo Shikhole & 2 others [2021] KEELC 3567 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3567/eng@2021-04-21

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