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ELCPartially AllowedELC Case No 243 of 2015 (application dated July 28, 2021)· [2022] KEELC 3548 (KLR)
King’oo & 11 others v Nguku & 4 others; Kamia & another (Interested Parties) (Administrators of the Estate of Amos Kamia Nguku) (Environment and Land Case Civil Suit 243 of 2015) [2022] KEELC 3548 (KLR)
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·~8 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court ordered the Machakos land registrar to register adverse possession claimants as owners within 90 days, despite a pending appeal and succession case.
What this practically means
#Executive summary
#This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on the plaintiffs' Notice of Motion dated July 28, 2021, brought under section 98 of the Civil Procedure Act, section 5 of the Judicature Act and section 28 of the Contempt of Court Act. The plaintiffs sought removal of all encumbrances registered against land parcel Mavoko Town/Block 3/2668 (except the court's decree of January 25, 2019), directions to the deputy registrar to execute the necessary transfer documents, an order compelling the Machakos land registrar to register them as proprietors in implementation of the decree, and contempt proceedings against the registrar and defendants. The decree, arising from a judgment of January 25, 2019 declaring the plaintiffs entitled by adverse possession, had been served on the registrar on May 5, 2019 but never implemented. The interested parties, who had appealed to the Court of Appeal (Civil Appeal no 377 of 2019) and lost a stay application dismissed on September 18, 2020, opposed the application on grounds including the pendency of Machakos High Court Succession Cause no 365 of 2012 over the same property. The court found no order staying execution existed and held court orders sacrosanct; the pending succession cause did not bar implementation, and the decree's terms were to be considered before estate distribution. The court allowed the application, lifted the restrictions, directed the deputy registrar to execute the documents, directed the land registrar to register the plaintiffs within 90 days failing which he would be cited for contempt, and awarded costs to the plaintiffs against the interested parties.
Key legal issues
#01
Whether encumbrances on the suit property should be lifted and the decree implemented despite a pending appeal and pending succession proceedings
Holding
Yes - there being no order staying execution, the decree must be implemented; the pending succession cause does not prevent it and the decree's terms must be considered before estate distribution
Reasoning
The court noted the decree of January 25, 2019 was served on the land registrar on May 5, 2019 and was never reviewed, vacated or set aside. The interested parties' stay application was dismissed on September 18, 2020, and no stay was in place. The court relied on section 98 of the Civil Procedure Act and section 78(1) of the Land Registration Act to justify removal of restrictions and execution of documents by the deputy registrar.
p. 4
Legal principles established
#- Court orders are sacrosanct and, absent any stay, a valid decree from a court of competent jurisdiction must be implemented
- A pending succession cause does not bar execution of a decree which must be taken into account before distribution of the estate
Court orders
#- 1.The restriction, inhibition, caveat or caution registered against land parcel number Mavoko Town/Block 3/2668 to be lifted forthwith
- 2.The deputy registrar, Environment and Land Court Machakos directed to execute, sign and process the necessary documents in respect of land parcel number Mavoko Town/Block 3/2668 to give effect to the judgment and decree of January 25, 2019
- 3.The land registrar Machakos directed to implement the judgment and decree of January 25, 2019 by registering the plaintiffs as owners of 40 acres of land from LR no Mavoko Town/Block 3/2668 within ninety (90) days, failing which he will be cited for contempt
- 4.Costs of the application awarded to the plaintiffs, to be borne by the interested parties
- Jurisdiction invoked
- Section 98 of the Civil Procedure Act; section 5 of the Judicature Act; section 28 of the Contempt of Court Act; section 78(1) of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "King’oo & 11 others v Nguku & 4 others; Kamia & another (Interested Parties) (Administrators of the Estate of Amos Kamia Nguku) (Environment and Land Case Civil Suit 243 of 2015) [2022] KEELC 3548 (KLR)", Case Analysis (2022). ELC Case No 243 of 2015 (application dated July 28, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3548/eng@2022-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.