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ELCAllowedNotice of motion dated February 25, 2022 (ELC, Kitale)· [2022] KEELC 3588 (KLR)

Kipungar v Tamning & 3 others (Land Case 181 of 2013) [2022] KEELC 3588 (KLR)

Environment and Land Court
20 July 2022
FNFred Nyagaka
799 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered the County Surveyor to subdivide disputed land, holding that parties cannot dodge court decrees to buy time.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale, delivered by Fred Nyagaka J on July 20, 2022, determined a post-judgment notice of motion dated February 25, 2022 filed by the defendants under sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The applicants sought a single order directing the County Surveyor, West Pokot, to visit land parcel No West Pokot/Siyoi/263 and subdivide it into two equal portions for the plaintiff and defendants. The application was prompted by the County Surveyor's refusal to conduct the survey without an express court order, despite having visited the land on February 15, 2022. The plaintiff opposed, arguing that the application was defective, departed from the prayers in the plaint, and was an abuse of process; no submissions were filed, the parties leaving the matter to the court. The court traced the history: its judgment of November 7, 2016 terminated a trust, cancelled the plaintiff's title and ordered separate titles in equal shares; an appeal in Eldoret Civil Appeal No 7 of 2017 was dismissed on July 25, 2019, leaving the decree to be implemented. The court held the objection about departure from the plaint was a misconception, since the application merely sought to give effect to the decree, and should not be used by a respondent unwilling to obey the decree to buy time. The application was found wholly meritorious and allowed with costs to the applicants.

Key legal issues

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01

Whether the relief sought in the post-judgment application was a departure from the prayers in the plaint

Holding

It was not; the decree already ordered cancellation of the plaintiff's title and issuance of separate titles in equal shares, and the application merely sought to effect the decree

Reasoning

The court compared the prayer in the application with the pleadings, the judgment of November 7, 2016 and the decree extracted on November 17, 2016. The counterclaim had sought a declaration of trust and the court terminated the trust and ordered separate titles in equal shares. The application therefore gave effect to the decree and did not depart from the pleadings; the objection was a misconception.

p. 2

Legal principles established

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  • A prayer in a post-judgment application seeking to give effect to a decree should not be defeated by a respondent unwilling to obey the decree

Court orders

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  1. 1.The application dated February 25, 2022 is allowed with costs to the applicants
  2. 2.The County Surveyor, West Pokot, is directed to visit land parcel No West Pokot/Siyoi/263 and subdivide it into two equal portions for the plaintiff and defendants

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3 and 3A
On appeal from
Court of Appeal, Eldoret
Civil Appeal No 7 of 2017
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kipungar v Tamning & 3 others (Land Case 181 of 2013) [2022] KEELC 3588 (KLR)", Case Analysis (2022). Notice of motion dated February 25, 2022 (ELC, Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3588/eng@2022-07-20

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