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ELCAllowed· [2024] KEELC 3469 (KLR)

Kishau & 2 others v Kiambu Nyakinyua Farmers Company Limited (Environment & Land Case 457 of 2017) [2024] KEELC 3469 (KLR)

Environment and Land Court
30 April 2024
MCMBOGO C.G.
941 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court let land owners win an adverse possession case move forward by authorising the Deputy Registrar to sign transfer documents the losing company refused to sign.

What this practically means

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Executive summary

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This was a Notice of Motion dated 4th May 2023 filed by the plaintiffs seeking an order that the Deputy Registrar of the court be authorized to sign all necessary documents for effective transfer of the suit property, L.R. No. 378/2 (approximately 4875 acres in Naivasha), to the plaintiffs and all persons named in a schedule attached to the suit, plus costs. The application was supported by the affidavit of the 2nd plaintiff, who deposed that judgment had been delivered in their favour on 8th July 2019, with a decree issued on 17th April 2023 ordering that the plaintiffs be registered as proprietors of the land in place of the defendant company, Kiambu Nyakinyua Farmers Company Limited. The defendant filed no response and no party filed submissions. In a ruling delivered on 30th April 2024, the court identified the sole issue as whether the application was merited. Reproducing the 2019 judgment, which had declared the plaintiffs entitled to the land by adverse possession of over twelve years, the court found there was a decree requiring execution. Relying on Section 98 of the Civil Procedure Act and the decision in Charles Mukoma Kimaru v Johnstone Muchomba Kaguya [2020] eKLR, the court held this was a proper case to exercise its discretion, as the defendant's neglect or refusal to sign transfer documents would defeat the decree. The court allowed the application, authorized the Deputy Registrar to sign the transfer documents, and made no orders as to costs.

Key legal issues

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Whether the court should exercise its discretion under Section 98 of the Civil Procedure Act to authorize the Deputy Registrar to sign transfer documents in execution of the decree

Holding

Yes; the judgment of 8th July 2019 and decree of 17th April 2023 required execution and no reason was advanced against granting the prayers.

Reasoning

The court noted that judgment was delivered on 8th July 2019 declaring the plaintiffs entitled by adverse possession and ordering their registration as proprietors of L.R. No. 378/2, and that a decree was issued on 17th April 2023. Since the decree required registration of the plaintiffs in place of the defendant company, there was need for execution. Citing Section 98 of the Civil Procedure Act and the Kimaru case, the court found the defendant's failure to sign transfer documents could defeat the decree and no contrary reason was advanced.

p. 3

Legal principles established

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  • Where a person neglects or refuses to comply with a decree directing execution of a conveyance, the court may nominate another person to execute the document, and it operates as if executed by the person originally directed.

Court orders

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  1. 1.The Deputy Registrar of the court is authorized to sign all the necessary documents for effective transfer of the suit property (L.R. No. 378/2) to the plaintiffs together with all the persons whose names are set out in the schedule attached to the suit
  2. 2.No orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure ActSection 98
  • Limitation of Actions ActSections 17 and 38
  • High Court (Organization and Administration) Act No. 27 of 2015Section 21
  • Registration of Titles ActChapter 281

Cases cited (1)

  • Charles Mukoma Kimaru versus Johnstone Muchomba Kaguya
    [2020] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Section 98 of the Civil Procedure Act; Sections 17 and 38 of the Limitation of Actions Act; Section 21 of the High Court (Organization and Administration) Act No. 27 of 2015

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, "Kishau & 2 others v Kiambu Nyakinyua Farmers Company Limited (Environment & Land Case 457 of 2017) [2024] KEELC 3469 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3469/eng@2024-04-30

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