Thomas & another (Suing as the administrators of the Kamondia Muchene) v Ng’ang’a (Sued as the administrator of the Estate of Rahab Kibui Ng'ang'a) (Environment and Land Miscellaneous Case E182 of 2025) [2026] KEELC 587 (KLR)

court declined to allow the Applicants to participate and directed the Applicants to execute the civil judgment hence the present application. 5. The Applicants are in actual possession of the land but are unable to perfect title due to absence of the original court file. Having considered the application, the Replying Afidavit and submissions by the Applicant, the court distils the following issues for Determination;Whether the Court has jurisdiction to entertain the application;Whether the Judgment is capable of execution despite the lapse of time;Whether the transfer to the Defendant’s wife defeats execution;Whether reconstruction or availing of the original file should be ordered. 6. A court retains residual and inherent jurisdiction to facilitate execution of its judgments and ensure they are not rendered illusory. In Board of Governors, Moi High School Kabarak v Malcolm Bell [2013] eKLR, the Supreme Court afirmed that courts possess inherent power to ensure the ends of justice are met. 7. On the question of Limitation, Section 4(4) of the Limitation of Actions Act provides: “An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered…” This provision bars execution of a Judgement after 12 years. However, Kenyan jurisprudence has consistently drawn a critical distinction between actions upon a judgment, and steps taken to give efiect to a declaratory or vesting judgment, especially in land matters. 8. In M’Ikiara M’Rinkanya & Another v Gilbert Kabeere M’Mbijiwe [2007] eKLR, the Court of Appeal held that section 4(4) applies to actions seeking to enforce monetary or coercive relief, but does not bar implementation of declaratory judgments concerning land ownership. 9. Similarly, in Willy Kimutai Kitilit v Michael Kibet [2018] eKLR (SC), the Supreme Court emphasized that equity and the doctrine of trusts operate to prevent technical limitation provisions from defeating substantive land rights. Significantly, in Benard Githae v Githinji [2015] eKLR, the Court held that where a decree directs transfer of land pursuant to adverse possession, execution is merely administrative completion of vested rights, not a fresh action upon a judgment. 10. Even more compellingly, the Applicants are in actual possession of the land. Limitation cannot be invoked by a party who has failed to comply with a court order while the successful party remains in possession. Equity does not permit a judgment debtor to benefit from his own non-compliance. 11. Regarding the issue of transfer to the wife, a Judgment declaring adverse possession does not create rights, it afirms rights that have already crystallized by efiuxion of time. In Public Trustee v Wanduru Ndegwa[1984] KLR 314, the Court held that once title is extinguished by limitation, the registered owner holds the land in trust for the adverse possessor. In the same vein in Githu v Ndeete [1984] KLR 776, the Court of Appeal held that a change of ownership does not interrupt adverse possession. 12. Any subsequent transfer by the registered owner is therefore subject to the already accrued rights of the adverse possessor. The transfer by the Defendant to his wife, having occurred after adverse possession had accrued, cannot be used defeat the Applicants rights. 13. On the missing file, the Courts have consistently held that loss or misplacement of a court file cannot defeat justice. In Republic v Registrar of Titles & Another ex parte Wainaina [2015] eKLR, the Court ordered reconstruction of records to facilitate registration where original documents were unavailable. The Applicants have demonstrated suficient cause for reconstruction. 14. Ultimately, I find that the application is merited and is allowed in the following terms; a. Leave is granted to the firm of Kenlee and company to come on record for the administrators of the estate of the late Kamondia Muchene https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/587/eng@2026-01-29 2

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b. The Court file in High Court Civil Case No. 503 of 1976 shall be traced and availed forthwith for purposes of execution. c. In the event the original file cannot be traced, the Deputy Registrar shall reconstruct the file using certified copies of pleadings, proceedings, judgment, decree, and any other available records. d. Upon availing or reconstruction of the file, the Deputy Registrar is authorised to execute all transfer instruments relating to Kabete / Lower Kabete / 79, and Kabete / Lower Kabete / T 149, in favour of the estate of the deceased Plaintifi. e. The Land Registrar shall, upon presentation of the executed instruments and decree, efiect registration in accordance with the judgment. f. Each party to bear their own costs for the application. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 29TH DAY OF JANUARY 2026. JUDY OMANGE JUDGE. In the presence of: N/A for the Applicants. N/A for the Respondent. Peter – Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/587/eng@2026-01-29 3

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