Kimaiyo v Kemei & 4 others

Gishu/Kimumu/4262 pursuant to or in connection with ELC Case No. 126 of 2014 (O.S). 3. This court be pleased to order and direct the Land Registrar, Uasin Gishu to proceed with and/or facilitate registration of the transfers in respect of Title No. Uasin Gishu/Kimumu/4261 and Title No. Uasin Gishu/ Kimumu/4262 in favour of the Plaintiff/Applicant in compliance with the judgment, decree and subsequent orders of this Honorable court. 4. This Honourable court be pleased to order the lifting /removal of the said restrictions in respect of title No. Uasin Gishu/Kimumu/4261 and Title No. Uasin Gishu/Kimumu/4262 and the registration of the transfer be effected forthwith and without any further reference to the 2nd and 3rd Respondents, the Deputy Registrar having already been authorized to execute the transfer documents on their behalf. 5. That in the alternative to prayers 1 & 2, the Land Registrar to restrictions appear in in respect Gishu/Kimumu/4261 court and explain why of Title No. Uasin No. Uasin and Title Gishu/Kimumu/4262 should not be removed. 6. 2. Costs of this application be provided for. The application is premised on the 7 grounds on the face thereof and supported by the Affidavit sworn on even date by Elizabeth Chebungei Kimaiyo and the annextures thereto ELC Case No. 126 Of 2014 (Os ) Ruling Page 2

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whose deposition basically explains out the grounds upon which the application is predicated among others. 3. It is deponed that this Honourable court heard and determined this suit in favour of the Applicant and a decree was issued declaring that she had become entitled by adverse possession to the suit properties and further ordering that she be registered as the sole proprietor thereof. 4. It is further deponed that on 24 th September, 2025, this court made further orders directing the Deputy Registrar of this court to sign transfer documents and all relevant documents on behalf of the 2nd and 3rd Respondents to facilitate transfer of the said parcels to the Applicant in compliance with the court’s judgment and decree. That the court further directed the Land Registrar, Uasin Gishu to dispense with production of the original title deeds and the 2 nd and 3rd Respondents’ documents required for transfer and registration at the Lands office. That pursuant to the said court orders, the transfer documents in respect of the suit parcels were duly executed by the Deputy Registrar on behalf of the relevant Respondents and by the Applicant as transferee. 5. It is further the Applicant’s claim that she has paid the requisite registration fees and complied with the Procedural requirements necessary to facilitate registration of the transfers into her name. That despite the judgment, decree and subsequent implementation orders, the certificates of official search issued on 3rd December, 2025 in respect of the ELC Case No. 126 Of 2014 (Os ) Ruling Page 3

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suit parcels still bear a court order/restriction restraining transactions allegedly pursuant to ELC No. 126 of 2014 (O.S). 6. It is the Applicant’s contention that the said restriction is inconsistent with the fact that the suit was fully heard and determined and the court has already issued consequential orders to enable transfer of the properties into the Applicant’s name. That the Applicant’s advocates wrote to the Land Registrar requesting removal of the said restriction and issuance of updated searches, but the same have not been resolved, thereby frustrating and delaying completion of the transfer process. That unless the court intervenes and directs removal of the said restriction, the Applicant stands to continue suffering prejudice and loss. The Applicant further contended that the application is made in good faith and in the interest of justice to enable her finally realize the fruits of the judgment of this Honourable court and complete the registration of the suit properties in her name. 7. The application was duly served upon the Respondents on 15th April, 2026, and there are Affidavits of service dated 16 th April, 2026 filed. However, on a perusal of the court record and the online filing platform, there is no response filed by the Respondents. 8. On 12.05.2016, this court issued directions on disposal of the present application by way of written submissions. The plaintiff/Applicant filed her submissions dated 18.05.2026 which were duly ELC Case No. 126 Of 2014 (Os ) served upon Ruling the Respondents on Page 4

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20.05.2026 as per the affidavit herein. I have read and duly considered the said submissions. Consequently, I proceed to render my decision as hereunder. Analysis and Determination: 9. I have carefully considered the grounds in the application and in the supporting affidavit sworn by the applicant on record, as well as the applicants’ submissions in totality. 10. Consequently, guided by the foregoing, for the Honorable Court to arrive at an informed, fair and reasonable decision, it has framed the following three (5) issues for its determination. These are: i. Whether the Applicant has established a basis for this Court to issue consequential orders to facilitate the implementation and enforcement of the Judgment and Decree dated 16th May 2024. ii. Whether the restriction/court order appearing against UASIN GISHU/KIMUMU/4261 and UASIN GISHU/KIMUMU/4262 ought to be removed, lifted and/or cancelled. iii. Whether the Land Registrar, Uasin Gishu County, should be directed to register the Applicant as proprietor of the suit properties and dispense with the production of the Respondents' documents and original title deeds. ELC Case No. 126 Of 2014 (Os ) Ruling Page 5

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iv. Whether continued non-compliance with the orders of this Court by the Land Registrar would attract consequences for contempt of court. v. Who should bear the costs of the application. (i) Whether the Applicant has established a basis for this Court to issue consequential orders to facilitate the implementation and enforcement of the Judgment and Decree dated 16th May 2024; 11. As submitted by the Applicants Counsel herein on record, Judgement was determined on the 16th May, 2024 and a decree was subsequently issued on the 12 th July 2024 declaring the Plaintiff/ Applicant to be the lawful owner of UASIN GISHU/ KIMUMU/4261 and UASIN GISHU/ KIMUMU/ 4262 by adverse possession. 12. Therefore, in reference to the above Section 14 of the Environment and Land Act stipulates that: “A judgement, award, order or decree of the Court shall be enforceable in accordance with the Civil Procedure Act.” 13. It is trite in law that a successful litigant must not be denied the fruits of their judgement as stated in the case of Macharia T/A Macharia & Co. Advocates vs. East African Standard (No. 2[2002] KLR 63. ELC Case No. 126 Of 2014 (Os ) Ruling Page 6

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14. In the present matter, the Applicant’s right to the suit properties was not created by this application. It was determined by the judgment of 16th May 2024. Therefore, the reason as to why the Applicant has filed the said application is for the Honourable Court to grant consequential and executory orders necessary to give effect to an existing decree. 15. The Applicant therefore seeks the intervention of the Court to facilitate implementation of the decree. 16. The Honourable Court has the duty to examine the precise terms of the judgment and decree and determine whether the orders now sought are merely ancillary to, and necessary for, the implementation of the decision already reached. I have perused the judgment herein. The court inter alia, declared the Applicant to have become the legal owner of the suit properties by adverse possession and ordered for registration in her name. 17. It is important to note that where the Court has already determined the parties' respective rights over the suit property, subsequent orders directing the relevant land registration authorities to give effect to that determination would ordinarily constitute consequential orders rather than a reopening of the dispute. ELC Case No. 126 Of 2014 (Os ) Ruling Page 7

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18. In my view, at the face of it the Applicant herein remains unsatisfied since the judgement delivered has not been effected as per the Honourable Courts direction therefore it is appropriate for the Court to issue appropriate consequential orders. 19. Consequently, a successful litigant should not be left with a judgement which although it is legally binding it cannot be practically implemented. 20. The Applicant herein has demonstrated via her application, affidavit and submissions the need to seek consequential orders because there is a restriction in place restraining any transaction over the suit parcels of land and which made reference to the suit ELC No. 126 of 2014 (OS). No doubt the said restriction is an impediment to the completion of the registration despite the suit being concluded to a finality. 21. In addition, despite the Applicant’s advocate writing to the Land Registrar vide a letter dated 12 th March, 2026 requesting the removal of the said restriction, the said matter till date has never been resolved. 22. I accordingly find that the Applicant has established a proper basis for seeking consequential orders thereto in regard to the Judgement and Decree issued by the Honourable Court. ELC Case No. 126 Of 2014 (Os ) Ruling Page 8

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(ii) Whether the restriction/court order appearing against UASIN GISHU/KIMUMU/4261 and UASIN GISHU/KIMUMU/4262 ought to be removed, lifted and/or cancelled; 23. It is the Applicant’s contention that vide a Certificate of Search issued on 3rd December 2025 in respect to both the land titles, the same continues to show a court order/restriction restraining any transactions pursuant to the suit properties under ELC NO. 126 OF 2014 (O.S). The said restriction is an impediment to the completion of registration. 24. The Applicant in her submissions further averred that the purpose of the said restriction were entered pursuant to litigation in order to preserve the status quo pending determination of the suit and once the final determination was made the underlying restriction falls away. But as per the current situation, the contrary is the position. 25. The provisions cited here below within the Land Registration Act govern the procedure to be adhered to in the registration and removal of restrictions to wit:Section 76 of the Land Registration Act provides that:‘ (1) For the prevention of any fraud or improper dealing or for any other sufficient cause, the Registrar may, either with or without the application of any person interested in the land, lease or charge, and after directing such inquiries to ELC Case No. 126 Of 2014 (Os ) Ruling Page 9

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be made and notices to be served and hearing such persons as the Registrar considers fit, make an order (hereinafter referred to as a restriction) prohibiting or restricting dealings with any particular land, lease or charge. (2) A restriction may be expressed to endure— (a) for a particular period; (b) until the occurrence of a particular event; or (c) until a further order is made, and may prohibit or restrict all dealings or only or the dealings that do not comply with specified conditions, and the restriction appropriate register. shall be (2A) A registered restriction in the shall be registered in the register and may prohibit or restrict either all dealings in the land or only those dealings which do not comply with specified conditions.’ And section 77 provides that:’ (1) The Registrar shall give notice, proprietor in writing, affected by of a the restriction to the restriction. (2) An instrument that is inconsistent with a restriction shall not be registered while the restriction is still registered except by order of the court or of the Registrar.’ 26. Further section 78 of the Land Registration Act stipulates that:- ‘(1) The Registrar may, at any time and on application by ELC Case No. 126 Of 2014 (Os ) any person interested Ruling or at the Page 10

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Registrar’s own motion, and after giving the parties affected by the restriction an opportunity of being heard, order the removal or variation of a restriction. (2) Upon the application of a proprietor affected by a restriction, and upon notice to the Registrar, the court may order a restriction to be removed, varied, or other order as it deems fit, and may make an order as to costs.’ 27. The above provision gives three ways in which a restriction can be removed, which are: a) Removal by the Land Registrar on application by any interested party; b) Removal by the Land Registrar of his own motion; and c) Removal pursuant to an order of the Court. 28. In the case of Matoya v Standard Chartered Bank (K) LTD & others (2003) I EA 140 the Court held that; “A restriction is ordered to prevent any fraud or improper dealing with a given parcel of land and the land registrar does this whether on its own motion or if so asked by way of an Application by the person interested in that land but before ordering the restriction the registrar is bound by law to make inquiries, send out notices and hear all those other people he may think fit first and he is not to move by whim, caprice or whatever influence personal or ELC Case No. 126 Of 2014 (Os ) Ruling Page 11

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otherwise just to impose a restriction since he has a duty to inquire and be satisfied that his duty to order restriction is not hurting a person who was not heard and that indeed the restriction is in general good that frauds and other improper dealings are prevented”. 29. It is important to note that a restriction should only serve as a temporary measure and should not be used to limit or deprive the Applicant of the right to the property in perpetuity, and further, there having been no justification as to why the restriction should continue to remain on the Applicant's suit land. 30. Vide the judgment and decree herein, the Applicant acquired the right to be registered as proprietor of the suit properties, and the restriction continues to prevent registration of that interest despite the subsisting decree. Therefore, the restriction would have the practical effect of frustrating implementation of the judgment and decree herein. 31. In addition, the Court ought to exercise caution so that removal of the restriction does not inadvertently affect any rights which were not the subject of the judgment. The appropriate order should therefore be limited to what is necessary to facilitate implementation of the decree. ELC Case No. 126 Of 2014 (Os ) Ruling Page 12

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32. In the circumstances, and subject to the exact terms of the decree, I find that there is a sufficient basis for the Court to order removal, lifting and/or cancellation of the restriction or court order to the extent that its continued existence obstructs implementation of the Judgment and Decree dated 16th May 2024. (iii) Whether the Land Registrar, Uasin Gishu County, should be directed to register the Applicant as proprietor of the suit properties and dispense with the production of the Respondents' documents and original title deeds; 33. The Applicant seeks, in the first instance, an order directing the Deputy Registrar of this Court to sign the transfer documents and all relevant documents on behalf of the 2nd and 3rd Respondents. In the alternative, she seeks an order requiring the said Respondents to execute and surrender the necessary documentation within seven days. 34. Having found that the Applicant is entitled to the fruits of the judgment issued together with the decree issued, the next question is whether the Land Registrar should be directed to facilitate registration. 35. The Land Registrar is an officer charged with maintaining the land register and giving effect to registrable instruments in accordance with the law. However, the administrative function of registration cannot be exercised in a manner that ELC Case No. 126 Of 2014 (Os ) Ruling Page 13

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defeats or frustrates a subsisting judgment and decree of a competent Court. 36. The Court is not directing the Land Registrar to determine who is entitled to the suit properties. That question has already been answered by this Court. The Land Registrar’s role at this stage is to facilitate the administrative implementation of the decree and registration of the Applicant in accordance with the judgment and the orders of this Court. 37. The Applicant has further demonstrated that the Deputy Registrar has been involved in the execution process and that the outstanding issue is essentially completion of the transfer and registration. The submissions indicate that the Applicant has paid the requisite registration fees and complied with the procedural requirements on her part. 38. The Honourable Court is of the view that the Applicant is entitled to an order directing the Land Registrar, Uasin Gishu County, to facilitate registration of the two suit properties in her name pursuant to the Judgment and Decree dated 16th May 2024 and the consequential orders of this Court. 39. As regards the original title deeds and personal documents of the 2nd and 3rd Respondents, the Court is satisfied that the failure of the Respondents to surrender documents ELC Case No. 126 Of 2014 (Os ) Ruling Page 14

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within their control should not, in the circumstances of this case, be allowed to defeat the judgment. 40. The Applicant has already obtained a judicial declaration of entitlement of the suit parcels of land. The Court has also provided the mechanism for execution of the transfer documents through the Deputy Registrar. The Land Registrar should consequently process the registration on the basis of the decree, duly executed transfer instruments and the orders of this Court, subject to such mandatory statutory requirements as are applicable and cannot lawfully be dispensed with. 41. The Court will therefore not issue a blanket order purporting to exempt the Land Registrar from every statutory requirement. Rather, the Land Registrar shall facilitate registration in implementation of the decree and shall not decline to act merely because of the failure or refusal of the 2nd and 3rd Respondents to cooperate or surrender documents which the Court has, through its consequential orders, rendered unnecessary for purposes of completing the transfer. 42. This approach ensures a proper balance between the Court’s duty to enforce its decree and the Land Registrar’s statutory mandate. ELC Case No. 126 Of 2014 (Os ) Ruling Page 15

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43. Ultimately, the Court must give effect to its own judgment. The Applicant has fought for and obtained a judicial determination of her rights. The substantive litigation has come to an end. What remains is the mechanical and administrative completion of the transfer. It would be unjust and contrary to the principle that a successful litigant should enjoy the fruits of judgment to leave the Applicant in possession of a judgment which cannot be translated into registration. (iv) Whether continued non-compliance with the orders of this Court by the Land Registrar would attract consequences for contempt of court; 44. The main issue to be determined by this court is whether the respondents are in contempt of this court order aforesaid. Contempt of court is that conduct or action that defies or disrespects authority of the court. Black’s Law Dictionary 9th Edition, defines contempt as: The act or state of despising; the conduct of being despised. Conduct that defies the authority or dignity of a court or legislature. Because such conduct interferes with the administration of justice. 45. Contempt is conduct that impairs the fair and efficient administration of justice. Courts punish for contempt to uphold their dignity and authority and to ensure compliance with directions of the court, observance and respect of due ELC Case No. 126 Of 2014 (Os ) Ruling Page 16

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process of law, preserve an effective and impartial system of justice, and maintain public confidence in the administration of justice by courts. 46. Without sanctions for contempt, there would be a serious threat to the rule of law and administration of justice. For a party to be cited for contempt, he must have violated and or disobeyed an order that was directed at him. 47. In In Econet Wireless Kenya Ltd v Minister for Information & Communication of Kenya & another [2005] KLR 828, Ibrahim, J (as he then was), underscored the importance of obeying court orders, stating; “It is essential for the maintenance of the rule of law and order that the authority and the dignity of our courts are upheld at all times. The court will not condone deliberate disobedience of its orders and will not shy responsibility to deal firmly is the contemnors. It plain away from with and its proved unqualified obligation of every person against whom an order is made by court of competent jurisdiction, to obey it unless and until the order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by the order believes it to be irregular or void.” ELC Case No. 126 Of 2014 (Os ) Ruling Page 17

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48. Contempt of court is in the nature of criminal proceedings and, therefore, proof of a case against a contemnor is higher than that of balance of probability. This is because liberty of the subject is usually at stake and the applicant must prove willful and deliberate disobedience of the court order, if he were to succeed. 49. Therefore, the authority of the Court depends substantially upon obedience to its orders. A court order is binding until it is set aside, reviewed, varied or successfully appealed against. A party who disagrees with an order cannot simply elect to disregard it. 50. However, an allegation of contempt is a serious matter and must be approached carefully. The Court must first establish that there was a clear and unambiguous order capable of compliance, that the alleged contemnor had knowledge of the order, and that there was a deliberate failure to comply with it. A mere administrative difficulty or inability to immediately implement an order does not automatically amount to contempt. 51. This distinction is particularly important in relation to the Land Registrar. The Registrar may be required to follow prescribed statutory procedures before altering the register. The existence of such procedures does not permit the Registrar to disregard a court order. Rather, where the order requires implementation through an administrative process, the Registrar ought to undertake that process within a ELC Case No. 126 Of 2014 (Os ) Ruling Page 18

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reasonable period and, where clarification or further directions are necessary, seek directions from the Court. 52. In the present matter, the Court should therefore first determine whether the judgment and decree clearly identified the acts required of each Respondent. If the Respondents were under a clear obligation to execute documents or take specified steps and knowingly failed to do so, enforcement orders may properly issue. 53. However, where the complaint is directed at the Land Registrar, the Court should establish whether the Registrar actually refused to implement the order, or whether there were legitimate statutory or administrative steps that remained outstanding. 54. The Court therefore finds that enforcement orders are warranted to the extent necessary to secure compliance with the Judgment and Decree. However, an order finding a party in contempt should only issue upon satisfaction of the applicable threshold for contempt and upon a clear finding of willful disobedience. Costs: 55. On the issue of costs, the general rule is that costs shall follow the event unless the court directs otherwise. However, given the circumstances of the case and considering that the application was not opposed, I will not condemn the Respondents to pay costs of the application to the Applicant. Disposition: ELC Case No. 126 Of 2014 (Os ) Ruling Page 19

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56. In view of the foregoing, I accordingly find that the Notice of Motion Application dated 9th April, 2026 is merited and is hereby allowed on the following terms: 1) The application dated 9.04.2026 is hereby allowed. 2) The restriction, registered against UASIN GISHU/ KIMUMU/4261 and UASIN GISHU/KIMUMU/4262 pursuant to or in connection with ELC Case No. 126 of 2014 (OS) is hereby removed, lifted and/or vacated, pursuant to sections 70(d) and 78(2) of the Land Registration Act, to the extent necessary to facilitate implementation of the judgment and decree. 3) The Land Registrar, Uasin Gishu County, is hereby directed to remove, lift and/or cancel the said restriction from the register and to facilitate the transfer and registration of UASIN GISHU/KIMUMU/ GISHU/KIMUMU/4262 4261 in and the name UASIN of the Applicant in accordance with the Judgment, Decree and consequential orders of this Court. 4) The Land Registrar shall not decline to process the registration merely by reason of the failure or refusal of the 2nd and 3rd Respondents to execute the transfer instruments or surrender documents which they have failed or refused to avail, the ELC Case No. 126 Of 2014 (Os ) Deputy Registrar Ruling having been Page 20

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authorized to execute the necessary transfer instruments on their behalf. 5) The Land Registrar shall, however, be at liberty to require statutory compliance requirement with and any mandatory payment of any lawful registration fees or charges applicable to the transfer. 6) The alternative prayer requiring Land Registrar to appear in court and explain why the said restrictions should not be removed is not necessary to grant at this stage. 7) Each parties to bear their own costs. 57. It is so ordered. DATED, SIGNED and DELIVERED in ELDORET this 17TH day of SEPTEMBER, 2026. HON. C. K. YANO JUDGE Ruling delivered in the presence of: Mr. Kigen for the Plaintiff/Applicant. No appearance for Mr. Angu for the Defendants/Respondents Court Assistant – Laban ELC Case No. 126 Of 2014 (Os ) Ruling Page 21

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