Florence Mutheu Mbithi v Katungulu Mwangangi & Others

RULING 1. Before this Court for determination is the Amended Notice of Motion dated 11th December, 2024. It is brought under the provisions of Sections 1A, 1B, 3A and 3B of the Civil Procedure Act in addition to Section 14 of the Environment and Land Court Act. 2. The Applicant seeks the following orders: 1. Spent 2. That the Honourable Court be pleased to order the District Surveyor, Makueni (6th Respondent) to at the Applicant’s costs and within thirty (30) days of the court so ordering to implement the decree/order of the Honourable Court given on 28th September, 2022 and issued on 23rd July, 2023 in Makueni ELC NO. E003 OF 2021 Florence Mutheu Mbithi (Suing on her behalf and as legal representative of the estate of Charle Mbithi Muli (Deceased) v Katungulu Mwangangi and Others by carrying out a resurvey and preparing fresh mutations in respect of the previous sub-division of land parcel number Nzaui/Nziu/383 into Nzaui/ Nziu/839, Nzaui/Nziu/840, Nzaui/Nziu/841. 3. That the 6th Respondent does file a report in court confirming the implementation of the said orders within thirty (30) days of the court so ordering. 4. That the Oficer Commanding Station (Ward Commander) Mukuyuni Police Station does at the Applicant’s cost provide security/protection for the above exercise. 5. That the 1st, 2nd, 3rd and 4th Respondents bear the costs of this application. 3. The application is premised on grounds appearing on its face. It is also supported by the afidavit of Florence Mutheu Mbithi sworn on 11th December, 2024. The Applicant avers that this court entered judgment on 28/09/2022 in Makueni ELC NO. E003 OF 2021 Florence Mutheu Mbithi (Suing on her behalf and as legal representative of the estate of Charle Mbithi Muli (Deceased) v Katungulu Mwangangi and Others ordering that a resurvey be carried out and fresh mutation prepared in respect of the previous subdivisions of land parcel number Nzaui/Nziu/383 into Nzaui/Nziu/839, Nzaui/ Nziu/840, Nzaui/Nziu/841. 4. She further averred that the decree was extracted on 24th July, 2023 and brought to the attention of the 5th and 6th Respondents. That the said orders are yet to be implemented to date since the order is not specifically directed at the 6th Respondent. She contended that unless the orders sought herein are granted, then the decree issued on 28/9/2022 will have been issued in vain. She added that she is ready to meet the costs of the exercise. 5. The 1st – 4th Respondents filed a replying afidavit sworn on their behalf by Rose Nzasua Mwangangi on 14th March, 2025. She averred that her Co-respondents do not oppose the subdivision of land Parcel No. Nzaui/Nziu/383 into three portions as alleged by the Applicant. She contended that there were no previous subdivisions and neither are there boundaries on the ground to indicate the demarcations of the three portions. She added that the decree issued by the court could not be enforced because of existing disputes in land parcel No. Nzaui/Nziu/383. She contended that the said dispute ought to be determined first before proceeding to subdivide the land into three portions. 6. The Applicant filed a supplementary afidavit on 15th April, 2025. She reiterated that indeed land parcel No. Nzaui/Nziu/383 was previously subdivided into land parcel numbers Nzaui/Nziu/839, Nzaui/ https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7416/eng@2025-10-30 2

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Nziu/840 and Nzaui/Nziu/841 and resultant title deeds issued. She added that the Respondents had even sold portions of their property arising from the said subdivisions to third parties. The Applicant contended that if the Respondents are of the view that there was no earlier subdivision, then that they ought to have agitated that position in Makueni ELC No. E003 of 2021 instead of raising the argument within the present application. 7. The Applicant contended that the decree in Makueni ELC No. E003 of 2021 is still in force and has not been set aside and the same ought to be implemented. 8. The application was canvassed by way of written submissions. In the Applicant’s submissions dated 15th April, 2025, Counsel submitted that the instant application is purely about the implementation of the decree of court in Makueni ELC Case No. E003 of 2021. That it is a cardinal principle of law that court orders cannot issue in vain. 9. Urging the Court to issue the orders that have been sought, Counsel cited the following cases: i. Republic v County Government of Kitui Ex parte Fairplan Systems Limited [2022] eKLR ii. B v Attorney General [2004] 1 KLR 431 iii. Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] eKLR 10. In the 1st – 4th Respondents’ submissions dated 20th June, 2025, Counsel placed reliance on the contents of the Respondents’ replying afidavit. It was submitted that application herein is an afterthought and that it ought to be dismissed with costs. 11. Having perused the application and the exhibits in support thereof, it is not in doubt that judgment was delivered in favour of the Applicant on 28th September, 2022 as evidenced by Exhibit “FMM2”. The record refiects that the 1st – 4th Respondents did not file a notice of appeal. Again, the record shows that there has been no stay of execution and neither has the judgment been set aside. The Applicant also annexed a copy of the decree that was issued on 24th July, 2023 as Exhibit “FMM3”. 12. It is not in question that the Applicant is entitled to the fruits of her judgment and that the application herein seeks to give efiect to the final decree. 13. Section 2 of the Civil Procedure Act defines a decree as follows: “ decree” means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final;… 14. This Court is vested with the inherent jurisdiction to make such orders as to further the overriding objective to ensure that the ends of justice are accomplished. There is no justification for the 1st – 4th Respondents impeding the 6th Respondent from implementing the decree of this court. 15. The Respondents have not demonstrated any prejudice that will be occasioned to them if the application is granted. Court orders must not be issued in vain and decree-holder is entitled to the fruits of judgment. Litigation must therefore come to an end. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7416/eng@2025-10-30 3

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16. In Samvir Trustee Limitedv Guardian Bank Limited[2007] eKLR Warsame J. (as he then was) aptly held as follows: “ It is a fundamental factor to bear in mind that, a successful party is prima facie entitled to the fruits of his judgement, hence the consequence of a judgement is that it has defined the rights of a party with definitive conclusion. The respondent is asserting that matured right against the applicant/defendant.” 17. As aptly held by the Court of Appeal in Kenya Shell Ltd v Kibiru and another [1986–1989] 1 EA 266 (CAK) there has to be just cause upon which the decree-holder will be prevented from enjoying the fruits of his judgment. Hancox JA observed as follows: “ As I said I accept the proposition that if it is shown that execution or enforcement would render a proposed appeal nugatory, then a stay can properly be given. Parallel with that is the equally important proposition that a litigant, if successful, should not be deprived of the fruits of a judgment in his favour without just cause.” 18. Similarly, in the case of Nyandoro & Company Advocates v National Water Conservation & Pipeline Corporation; Kenya Commercial Bank Group Limited (Garnishee) [2021] KEHC 13342 (KLR), the court aptly held as follows: “ A litigant is entitled to reap the fruits of his successful litigation. As a result, where a Judgment-Debtor fails to comply with the terms of a judgment, the Judgment-Creditor is entitled to enforce such judgment by adopting a suitable procedure provided under the law.” 19. In the result, the application is merited and it is granted in terms of prayers 2, 3 and 4. It is so ordered. ………………………………… HON. E. O. OBAGA JUDGE RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF OCTOBER, 2025. In The Presence Of: Ms. Munyao for Applicant. Mr. Munyasya for 1st and 4th Defendants. Court assistant – Steve Musyoki …………………………………. HON. E. O. OBAGA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7416/eng@2025-10-30 4

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