Caroline Cherono Kirui v Liner Cherono Towett [2022] KEELC 1443 (KLR)
The bottom line
#A Kenyan court can cancel land subdivisions made during a court case and order surveyors to reverse them so a winning buyer still gets their land.
What this practically means
#Executive summary
#Key legal issues
#Whether the application violated Order 22 Rule 18(1)(a) for want of a Notice to Show Cause
No. The one-year period runs from the decree, which was issued on 8/03/2021, and the application filed on 14/10/2021 was about 7 months after the decree.
Order 22 Rule 18(1)(a) requires notice to show cause only where execution is sought more than one year after the decree. Judgment was delivered on 13/07/2018 but the decree issued on 8/03/2021. The application of 14/10/2021 was within a year of the decree, so no notice to show cause was required before execution.
Whether the court could order cancellation of subdivisions and amendment of the RIM when the Regional Surveyor was not a party
Yes. Section 34 CPA gives the executing court power over all questions arising in execution, and Order 22 Rule 28(5) permits the court to direct that the act required be done by the decree-holder or another appointed person at the judgment-debtor's cost.
The Court of Appeal in Adiel Muriithi Philip v Thomas Maingi confirmed that matters concerning discharge or satisfaction of a decree are determined by the executing court. The Regional Surveyor's own letter indicated he could act on a court order, so joinder of the Surveyor was unnecessary for the relief sought.
Whether the defendant's contention that parcel 2807 no longer exists defeated the application
No. The subdivision occurred after the suit was filed, none of the resultant parcels contains the 0.404 Ha, and the conduct was meant to defeat the ends of justice; the argument was rejected as inimical to public policy, applying lis pendens principles.
The mutation form dated 22/03/2013 shows the subdivision was done months after the suit was instituted. Applying the lis pendens principle discussed in Carol Silcock v Kassim Sharrif Mohamed, the court held that a judgment creditor cannot be forced to restart litigation merely because the subject property's status changed midstream.
Legal principles established
#- Where the judgment is over a year old, a decree holder must take out a Notice to Show Cause under Order 22 Rule 18(1)(a) before commencing execution; time runs from issuance of the decree, not the judgment.
- Under section 34 of the Civil Procedure Act, the court executing the decree determines all questions relating to execution, discharge or satisfaction of the decree, including directing amendment of a RIM and cancellation of post-suit subdivisions.
- Order 22 Rule 28(5) empowers the court to direct that the act required by a decree for specific performance be done by the decree-holder or another person at the judgment-debtor's cost.
- A defendant's subdivision or transfer of suit property pending suit cannot defeat execution of the decree; arguing the land no longer exists is contrary to public policy and the principle of lis pendens.
Court orders
#- 1.The Regional Surveyor, Rift Valley Region is ordered to amend the Registry Index Map (RIM) for Njoro/Ngata Block 2 (Kirobon 'A') and cancel the subdivisions known as land parcels numbers Njoro/Ngata Block 2/3738-3750 comprised in the mutation form serial number 03998393 so that the land reverts to Land Parcel Number Njoro/Ngata Block 2/2807 (Kirobon)
- 2.A surveyor of the plaintiff's choice is directed, after compliance with order (a), to survey Njoro/Ngata Block 2/2807 (Kirobon), excise a portion measuring approximately 0.404 Hectares and prepare mutations in respect thereof
- 3.Upon compliance with order (b), the sequence of events envisaged in orders (d) and (e) of the decree dated 13/7/2018 shall be commenced to ensure full execution of the decree
- 4.The O.C.S. Njoro Police Station shall provide security during the survey work
- 5.The respondent/defendant shall bear the costs of the application and of the survey activities comprised in orders (a) and (b)
- Jurisdiction invoked
- Civil Procedure Act, section 34 and Order 22 Rule 28(5) of the Civil Procedure Rules (power of the court executing a decree)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Caroline Cherono Kirui v Liner Cherono Towett [2022] KEELC 1443 (KLR)", Case Analysis (2022). Not stated on the face of the ruling (ELC, Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1443/eng@2022-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.