Kitulu & 8 others v Ndolo (Environment and Land Case 241 of 2017) [2025] KEELC 8069 (KLR)
The bottom line
#A Kenyan court refused to let winning parties sell land to recover legal costs because they never proved the land actually belonged to the person who owed them money.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the orders sought by the Applicant should be granted, namely excision and sale of 10 acres out of LR No. 1757/30 Sultan Hamud in satisfaction of decrees for costs
Key legal issues
#Ownership of the property proposed for attachment and sale
The burden lay on the Applicants to prove that LR No. 1757/30 belonged to the judgment debtor, which they failed to discharge
The Applicants' supporting affidavit annexed nothing showing ownership of LR No. 1757/30 by the Respondent. When the Respondent denied ownership in a further affidavit, the Applicants did not counter with a title search; their valuation report omitted ownership details and invoked a limiting disclaimer. The Respondent's deposition that the land belonged to third parties was therefore uncontroverted.
Whether orders of excision and sale should issue where the property has been declared the subject of nullified subdivisions
Even if ownership had been proved, no orders would issue because the court had already declared all subdivisions from LR No. 1757/19, including LR No. 1757/30, null and void
In a ruling on a notice of motion dated 23rd August 2024, the court had declared all subdivisions arising from LR No. 1757/19, including LR No. 1757/30, null and void and cancelled them. Granting the excision and sale orders would therefore be futile and in vain.
Legal principles established
#- Before a court grants orders for sale of property in execution, it must be satisfied that the property belongs to the judgment debtor
- A court should not issue orders in vain or orders impractical for compliance
Court orders
#- 1.The Applicants' notice of motion dated 25th March 2024 is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original execution jurisdiction under the Civil Procedure Act (Sections 38 and 44(1)) and Order 22 of the Civil Procedure Rules
Relief refused
#Excision, subdivision and sale of 10 acres out of LR No. 1757/30 Sultan Hamud to satisfy the decrees for costs in ELC Nos. 233–241 of 2017
The Applicants failed to demonstrate that LR No. 1757/30 belongs to the Respondent; further, all subdivisions from LR No. 1757/19 including LR No. 1757/30 had been declared null and void in a prior ruling
Costs
Dismissed with costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore find that the Applicants application lacks merit. The same is dismissed with costs to the Respondent
Before a court can grant orders for sale of a property belonging to a judgment debtor, the court must be satisfied that that property belongs to the judgment debtor.
It is trite law that courts should not issue orders in vain or issues orders that are impractical for compliance or grant orders to undo what has already taken place
The Applicants having failed to demonstrate that the Respondent owns LR No. 1757/30, no orders can be given in the manner sought.
Issues in the judgment
#The judgment notes the Respondent's replying affidavit dated 18th April 2024 is missing from the case tracking system
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitulu & 8 others v Ndolo (Environment and Land Case 241 of 2017) [2025] KEELC 8069 (KLR)", Case Analysis (2025). Notice of Motion dated 25th March 2024 (arising from ELC Case Nos. 233–241 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8069/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.