Hantoosh v Hantoosh & another (Environment and Land Case 396 of 2016) [2025] KEELC 7700 (KLR)
The bottom line
#A Mombasa court confirmed that winning a land case is not enough - you must actively enforce the judgment, and the court will help you do it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's application to recall the title issued on 31st July 2023 and compel sub-division into two equal titles was merited
The application was merited; the decree remained unsatisfied due to non-compliance and the Court invoked its powers to give practical effect to its judgment
The Court found the judgment created a right in rem but is not self-executing within the registry; the Land Registrar can act on a valid court order under Sections 79, 80 and 26 of the Land Registration Act. The Respondents' refusal to cooperate was an affront to the court's authority, and the Court may appoint an officer to execute documents where a party refuses.
Whether the Interested Party's application for review under Section 80 CPA and Order 45 CPR was merited
The review application was allowed on the ground of 'sufficient reason', varying Order (c) to provide for sectional titles rather than sub-division
Although the applicant had not pointed to new matter, error apparent or undue delay, the Court found the sectional property conversion would make execution of the decree smoother, more efficient and fair with no prejudice to any party, being a land matter where the best interest of justice and equity prevails.
Who bears the costs of the two applications
No orders as to costs despite costs normally following the event
The Court acknowledged Section 27(1) CPA proviso and the cases on costs following the event, but in its discretion elected not to award costs.
Legal principles established
#- A judgment alone does not automatically change land titles; a party must take active steps to enforce the judgment through the land registry system, which operates administratively.
- The ELC is not functus officio after delivering judgment; Section 13(7) of the ELC Act empowers it to make any order to give effect to its decisions.
- Where a party refuses to execute documents to give effect to a court judgment, the court can appoint one of its officers to do so in their stead.
- Review under Section 80 CPA and Order 45 is confined to error apparent on the face of the record; a review is not an appeal.
Court orders
#- 1.Both Notices of Motion dated 26th July, 2024 and 28th January, 2025 found merited and allowed with no orders as to costs
- 2.The title issued by the Land Registrar to Mohamed Swaleh Karma Hantoosh on 31st July, 2023 to be recalled and deposited in court for cancellation and revocation
- 3.The Judgment of 7th March, 2024 varied - Order (c) to read that Plot No. Mombasa/Block/XVII/1323 be submitted to the Land Registrar and each unit to have a Certificate of Lease under the Sectional Title instead of the same being sub-divided into equal titles
- 4.The District Surveyor Mombasa District to carry out survey on Plot No. Mombasa/Block XVII/1323 and cause issuance of two equal titles in the names of Mohamed Swaleh Karma Hantoosh and Mohamed Swaleh Karma Hantoosh
- 5.The Land Registrar Mombasa Land District Registry to issue two equal titles in the names of Mohamed Swaleh Karma Hantosh and Anisa Swaleh Karama in terms of the survey conducted by the District Surveyor Mombasa district
- 6.No orders as to costs
- Jurisdiction invoked
- Section 13(7) of the Environment and Land Court Act, No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hantoosh v Hantoosh & another (Environment and Land Case 396 of 2016) [2025] KEELC 7700 (KLR)", Case Analysis (2025). Mombasa ELC (case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7700/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.