Kitulu & 8 others v Ndolo (Environment and Land Case 241 of 2017) [2025] KEELC 8069 (KLR)

3. That the Defendant/Judgment debtor be directed to sign all necessary applications to the Land Board, the physical planning Department, the survey of Kenya and the transfer to facilitate the subdivision and excision of the 10 acres parcel aforesaid. 4. That in the event of a default by the Defendant/Judgment debtor, the Deputy Registrar ELC Court Makueni to sign all relevant applications in order to facilitate the subdivision, excision and sale of the 10 acres parcel of the attached property in satisfaction of the decrees in ELC Nos.233-24 of 2017. 5. That the court do make further orders as necessary to settle the terms and conditions of the sale of the judgment debtor’s property aforesaid. 6. That in any event, the costs of the suit be awarded to the Applicants. Applicant’s Contention 2. The Applicants contend that they were awarded costs in respect of ELC Case Nos. 233 to 241 of 2017. In order to execute the decrees for costs issued in favour of the Applicants, M/s Bemac Auctioneers have attached LR No. 1757/30 which is owned and occupied by the Judgment debtor/Respondent. 3. The attached property measures over 100 acres and contains the matrimonial home of the Respondent, the family graveyards among other developments. The Applicants have caused the attached property to be valued whose value is 150 million yet it is the only property which can satisfy the decree. 4. In order not to disrupt the Respondent’s homestead and life the Applicants want a parcel of 10 acres to be excised from the attached property to settle the costs due to the Applicants. 5. The Applicants state that in order to proceed with sale of immovable property, Order 22 Rule 48 of the Civil Procedure Rules requires that a prohibitory order do issue to prohibit any dealings with the attached property by either the Respondent or his agents and/or servants. It is on this basis that the Applicants are seeking the orders in this application. Respondent’s Contention 6. Though the Respondent indicated in his supplementary afidavit of 30th June, 2025 that he had opposed the Applicants’ application through a replying afidavit dated 18th April, 2024, the said afidavit is not in the court’s CTS (case tracking system). However, this notwithstanding the Respondent states that LR No. 1757/30 does not constitute the matrimonial home of the Respondent or the grave yards as alleged. He states that LR No. 1757/30 is owned by Henry Kavita, Stansalus Kyalo, Cornelius Mwange, Anne Sein, Gabriel Mbindyo, Lucia Kitheka, Sebastian Chonyi, Mayrose Mulwa, Elizabeth Kalei, Julius Kavita, Stephen Makanga, Maurice Wambua, Benson Mulwa and Tom Kalei wo are occupying it. 7. The Respondent states that even if the orders were to be granted, they will be in vain. Applicants’ Further Contention 8. In a supplementary afidavit sworn by the Applicants on 10th July, 2025, the Applicants state that the Respondent has not annexed a search to confirm his deposition that LR 1757/30 does not belong to the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8069/eng@2025-11-20 2

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Parties Submissions 9. The parties were directed to fie written submissions. The Applicants filed their submissions dated 15th May, 2025. The Respondents filed his submissions dated 30th June, 2025. 10. The Applicants submitted that Section 38 of the Civil Procedure Act provides that a court may on application order that a property be sold to realize any decretal sum. 11. The Applicants cited Section 44(1) of the Civil Procedure Act which provides as follows: “ All property belonging to a judgment debtor, including property over which or over the profits of which he has a disposing power which he may exercise for his own benefit, whether that property is held in his name or in the name of another but on his behalf, shall be liable to attachment and sale in execution of a decree”. 12. The Applicants relied on the case of David Oyiare Ntungani v Matuiya Ole Naisuaku Orket (2021) KELC 3663 (KLR) where it was held as follows: “ That being the case, I shall allow the Plaintifi’s application dated 19th August, 2020 as follows: a. The Plaintifi/Decree holder is hereby granted leave to efiect execution by way of attachment and sale by Auction of a portion of land known as KJD/ Lorngusua 1292, subject to valuation. b. Pending the subdivision and sale of a portion of land known as KJD/ Lorngusua 1292, a prohibitory order is hereby issued, prohibiting the judgment debtor from transferring or charging, or encumbering or alienating the property in any way and prohibiting all persons from taking any benefit from such purported transfer, charge, encumbrance, or alienation, and the prohibitory inhibition to be registered against the title”. 13. The Respondent submitted that the Applicants had failed to produce evidence that LR No. 1757/30 belonged to the Respondent and as such the orders sought cannot be granted. The Respondent further submitted that LR No. 1757/30 belongs to individuals named in the supplementary afidavit sworn on 30th June, 2025. 14. The Respondent relied on the case of Muyale v Mulefu (1985) EKLR where it was held as follows: “ ....The principles of pleading is that the subject matter of any suit must be clearly and correctly described so s to avoid any execution on the wrong property. The error in the description of the title is so fundamental that it might have resulted in a difierent property being attached with dire consequences for the Respondents”. 15. The Respondent relied on the case of Water Front Holdings Limited v Registrar of Titles Mombasa & Another; Kandie (Interested Party) (2022) KEELC 13694 (KLR) where it was held as follows: “ ....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”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8069/eng@2025-11-20 3

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Analysis and Determination 16. I have carefully considered the Applicants’ application as well as the opposition thereto by the Respondent. I have also considered the submissions by the parties. The only issue for determination is whether the orders sought by the Applicant should be granted. 17. 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. In the instant case, whereas there is no doubt that the Respondent owes the Applicant money in costs, there is nothing which was annexed to the Applicant’s supporting afidavit to show that LR No. 1757/30 belongs to the Respondent. When the Respondent in a further afidavit denied that he owns the property known as 1757/30, the Applicants in a supplementary afidavit sworn on 10th July, 2025 did not counter that by showing that the property indeed belonged to the Respondent. They instead stated that the Respondent was trying to defiect the court from the course of justice and that the Respondent had failed to produce evidence in form of searches to confirm what he was alleging. 18. It is the Applicants who wanted orders touching on LR 1757/30 which was said to belong to the Respondent. The valuation report of the property did not state who was the owner of the LR No. 1757/30, though they indicated that they had perused the records at Lands Registry. The valuer conveniently invoked a limiting condition which stated that the valuation is based on information presently available from the records in the Land Registry and in the event that such records may be incomplete or not up to date responsibility cannot be accepted for any resulting deficiency or inaccuracy in the information obtained herein. 19. The importance of proper description of the property sough to be attached was emphasized in the Muyale case (Supra). In the Water Front Holdings Limited case (Supra) it was held that a court cannot give orders in vain. If it is indeed true as the Respondent alleges which was not controverted, issuing the orders sought will be in vain. Disposition 20. The Applicants having failed to demonstrate that the Respondent owns LR No. 1757/30, no orders can be given in the manner sought. I therefore find that the Applicants application lacks merit. The same is dismissed with costs to the Respondent sufice to mention that even if the Applicants had succeeded in demonstrating that LR No. 1757/30 belonged to the Respondent, no orders would have been issued in view of this court’s finding in the Notice of Motion dated 23rd August, 2024 where all subdivisions resulting from LR No. 1757/19 which includes LR No. 1757/30 have been declared null and void and accordingly cancelled. It is so ordered. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 20TH DAY OF NOVEMBER, 2025. HON. E. O. OBAGA JUDGE In the Presence of: Mr. Mbindyo for Applicants Ms. Jematia for Mr. Ndalila for Respondents Court assistant – Nelima https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8069/eng@2025-11-20 4

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