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ELCDismissedNot stated in the ruling· [2025] KEELC 3179 (KLR)

Ndovu Builders & General Contractors Ltd v Attorney General & 6 others (Environment & Land Case 43 of 2015) [2025] KEELC 3179 (KLR)

Environment and Land Court
8 April 2025
AKA. Y. Koross
1,082 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to force defendants to sign a mutation form because the earlier judgment was only declaratory and required no one to act.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Y. Koross, J) determined the plaintiff's notice of motion dated 3/07/2024 in a long-running boundary dispute. The plaintiff sought orders compelling the 6th and 7th defendants to sign a mutation form for L.R. Nos. Muputi/Kiima Kimwe/2601, 2602, 2594, 2595 & 3601 within seven days, or in the alternative, that the Deputy Registrar sign it on their behalf, with costs against the 6th and 7th defendants. The plaintiff explained that following the court's judgment of 4/10/2019, it had engaged the county surveyor, who reversed unprocedural amendments to the survey map made on 2/08/2010; surveys were conducted on 20/09/2023 and 15/01/2024 with the neighbouring owners involved, and a mutation form was prepared for signature by all affected parties. The 6th and 7th defendants refused to sign despite reminders. No party opposed the motion, which was canvassed by way of oral submissions by Mr Mutinda for the plaintiff on 3/02/2025. Relying on Section 14 of the Environment and Land Court Act, the court turned to Section 98 of the Civil Procedure Act, which permits the court to nominate a person to execute a document where a party neglects or refuses to comply with a decree directing him to execute it. Examining the final orders of 4/10/2019, the court found they were purely declaratory - nullifying the 2010 survey amendments, confirming the plaintiff's ownership of parcel 2601, and awarding costs - with no direction to execute any document. Applying the Court of Appeal's definition of declaratory relief in Attorney General v Bala, the court held that a declaratory judgment does not require anyone to do anything, and the threshold for Section 98 was therefore not met. The motion was dismissed with no orders as to costs, the defendants not having opposed it.

Key legal issues

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Whether the court could order execution of the mutation form under Section 98 of the Civil Procedure Act

Holding

The motion is unmerited because the 2019 judgment issued only declaratory orders and contained no direction to the 6th and 7th defendants to execute any document.

Reasoning

Section 14 of the ELC Act imports the enforcement procedures of the Civil Procedure Act. Section 98 CPA permits the court to nominate a person to execute a document only where a decree or order directs a party to execute it. Scrutiny of the final orders of 4/10/2019 revealed only declarations nullifying the 2010 survey amendments and confirming ownership, plus costs. No execution directive existed, so the threshold for Section 98 was never met.

p. 3
02

The nature and effect of declaratory relief

Holding

A declaratory order is explanatory, clarifies rights, and does not compel any party to act.

Reasoning

The court adopted the Court of Appeal's definition in Attorney General v Bala: a declaratory order clarifies what was uncertain and declares rights between parties, binding as to present and future rights. Because such a judgment has very limited powers, it cannot found an enforcement mechanism requiring execution of documents by reluctant parties.

p. 3

Legal principles established

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  • Section 98 of the Civil Procedure Act applies only where a decree or order already directs a party to execute a document; absent such a direction, the court cannot nominate another person to execute the document.
  • A declaratory judgment states the court's authoritative position on an existing legal position and does not require anyone to do anything.

Court orders

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  1. 1.Dismissal of the notice of motion dated 3/07/2024
  2. 2.No orders as to costs, since none of the defendants opposed the motion

Authorities

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Legislation

  • Environment and Land Court ActSection 14
  • Civil Procedure ActSection 98

Cases cited (1)

  • Attorney General v Bala
    (Civil Appeal 223 of 2017) [2023] KECA 117 (KLR) (3 February 2023) (Judgment)
Jurisdiction invoked
Section 14 of the Environment and Land Court Act read with 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, "Ndovu Builders & General Contractors Ltd v Attorney General & 6 others (Environment & Land Case 43 of 2015) [2025] KEELC 3179 (KLR)", Case Analysis (2025). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3179/eng@2025-04-08

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