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ELCPartially AllowedNot stated in the judgment as provided· [2025] KEELC 1034 (KLR)
Kitur & another v Land Registrar, Nandi County (Environment & Land Case 100 of 2021) [2025] KEELC 1034 (KLR)
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#What this practically means
#Executive summary
#By an Ex Parte Notice of Motion dated 13th October 2023 brought under sections 1A, 1B, 3 and 3B of the Civil Procedure Act, the plaintiff/applicants through Duncan Tallam and Company Advocates sought orders directing the County Surveyor, Nandi County to survey and subdivide parcel Nandi/mutwot/210 into three portions of 16 Ares, 13.5 Acres and 10 Acres for transmission to Philip Kiprop Kitur, Kitur Arap Misoi (now Deceased) and Cheruiyot Kitur respectively, and directing the OCS, Mosoriot Police Station to provide security during the exercise and affirm the applicants' possession and occupation. The applicants asserted that the court had adopted a consent on 15th November 2021 as a valid court order, that no appeal or application for stay was pending, and that they intended to execute that consent order. The respondent was duly served as shown in an affidavit of service sworn on 3rd March 2025 but filed no response. Relying on section 34 of the Civil Procedure Act on questions arising in execution of a decree, and on Shahmad v Shamji Bros (1957) EA 438, the court held that the applicants have a vested right to the consent order, which ought to be effectual, and that the consent order has neither been varied nor set aside. Allowing the application, G M A Ongondo J granted the survey/subdivision and security orders in terms of prayers 2 and 3 of the motion, and ordered that costs of the application be in the cause. Judgment was delivered at Kapsabet on 4th March 2025.
Key legal issues
#01
Whether the applicants are entitled to execute the consent order adopted by the court on 15th November 2021
Holding
The application was allowed in terms of the survey/subdivision and security orders
Reasoning
The court held that the applicants intend to have the consent order executed and that section 34 of the Civil Procedure Act governs questions arising in execution of a decree. Relying on Shahmad v Shamji Bros, the court found the applicants have a vested right to the consent order which ought to be effectual. The consent order has neither been varied nor set aside, no appeal or stay is pending, and the respondent, though duly served, filed no response. The applicants were therefore entitled to the principal prayers in the interest of justice.
p. 2
Legal principles established
#- A party has a vested right to a consent order, which ought to be effectual, and such an order stands unless varied or set aside.
Court orders
#- 1.The County Surveyor, Nandi County ordered and directed to survey so as to subdivide parcel Nandi/mutwot/210 into three (3) portions of 16 Ares, 13.5 Acres and 10 Acres for transmission to Philip Kiprop Kitur, Kitur Arap Misoi (now Deceased) and Cheruiyot Kitur respectively
- 2.An order directing the OCS, Mosoriot Police Station to provide security during the survey and sub-division of the land and affirm the applicants' possession and occupation during the exercise
- 3.Costs of the application be in the cause
- Jurisdiction invoked
- Sections 1A, 1B, 3, 3B and 34 of the Civil Procedure Act, Chapter 21 Laws of Kenya (execution of decree/consent order)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitur & another v Land Registrar, Nandi County (Environment & Land Case 100 of 2021) [2025] KEELC 1034 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1034/eng@2025-03-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.