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ELCDismissedKitale ELC Case of 2016 (unnumbered in ruling)· [2025] KEELC 3044 (KLR)

Mbito v Law (Enviromental and Land Originating Summons 20 of 2019) [2025] KEELC 3044 (KLR)

Environment and Land Court
2 April 2025
883 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kitale court refused to help a landowner complete a transfer because he showed no evidence of trying to execute the judgment himself first.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kitale (C.K. Nzili, J) determines an application dated 13/9/2024 by the decree-holder, Michael Maling'a Mbito, who had obtained judgment on 6/12/2021 declaring him entitled to 9 acres out of LR No. 11005 (IR No. 18979) by adverse possession, with a decree issued on 30/11/2023. Unable to trace the original title deed or the defendant, he sought orders authorizing the Deputy Registrar to execute the subdivision and transfer documents and dispensing with production of the original title. The application was served by newspaper extract but unanswered. The court framed the inquiry under Section 98 of the Civil Procedure Act, holding that an applicant must demonstrate the efforts made to execute the decree and the inability faced. Authorities applying that principle (Chemoltor v Loishakou; Osoro v Mogere; Juma Mbui v Public Trustee) were applied. The court found no evidence of efforts to trace the judgment debtor, prepare or serve transfer documents, or seek surrender of the title, and so declined the relief. It also declined to grant orders to effect the decree in the related suit, Kitale ELC No. 10 of 2016 (OS), since the files were not consolidated and the deponent's authority to act for those decree holders was not demonstrated. Noting the decree already contained self-executing vesting orders, the court dismissed the application with no orders as to costs.

Key legal issues

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01

Whether the court should order the Deputy Registrar to execute transfer documents under Section 98 of the Civil Procedure Act

Holding

The application fails because the applicant did not demonstrate efforts made to trace the judgment debtor or facilitate execution of the decree

Reasoning

Section 98 permits the court to nominate a person to execute a conveyance where a party neglects or refuses to comply with a decree. However, the applicant must first show the efforts made and the inability faced. Here, there was nothing to show the applicant attempted to trace, serve, or send transfer documents to the judgment debtor, so the court found no basis to grant the relief.

p. 2
02

Whether orders could issue in this suit to effect the decree in Kitale ELC No. 10 of 2016 (OS)

Holding

The court declined as the files are not consolidated and there was no evidence of authority to act for the decree holders in that suit

Reasoning

The applicant sought to have orders in this suit effect the decree in a separate suit. The court held the deponent lacked demonstrated authority to plead for the decree holders in that matter, and since the two files were not consolidated, the decree holders had to move the court in the appropriate file.

p. 2
03

Whether the decree already contained self-executing provisions rendering the application unnecessary

Holding

The decree contained self-executing vesting orders, and the applicant had not explained why he had not sought registration directly from the Land Registrar

Reasoning

The court observed that the decree, as extracted, had self-executing vesting orders pursuant to paragraph 22 of the judgment. It was unclear why the applicant had not simply sought from the Land Registrar to be registered as owner of the decreed land, undermining the necessity of the application.

p. 2

Legal principles established

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  • To qualify under Section 98 of the Civil Procedure Act, an applicant must demonstrate the efforts made to execute the decree and the inability faced, such that court assistance is the only option left
  • Questions relating to execution of a decree must be determined by the court executing the decree, not by a separate suit

Court orders

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  1. 1.The application is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSection 98
  • Civil Procedure ActSection 34

Cases cited (3)

  • Simon Pkite Chemoltor v William Loishakou
    [2017] eKLR
  • Fredrick Nyakagwa Osoro -v Hezron Mogere & Another
    [2016] eKLR
  • William Juma Mbui -v Public Trustee & Another
    [2019] eKLR
Jurisdiction invoked
Section 98 of the Civil Procedure Act

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, "Mbito v Law (Enviromental and Land Originating Summons 20 of 2019) [2025] KEELC 3044 (KLR)", Case Analysis (2025). Kitale ELC Case of 2016 (unnumbered in ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3044/eng@2025-04-02

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