Bethwel Mwangi Githinji, Stephen Mugane S/O Erastus Githinji & William Kungu Karanja v Harrison Wachira Wanjohi & Bernard Mwangi Ngunju [2019] KEELC 2653 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT MURANG’A

ELC NO. 218 OF 2017

BETHWEL MWANGI GITHINJI................. 1ST PLAINTIFF/RESPONDENT

STEPHEN MUGANE S/O

ERASTUS GITHINJI......................................2ND PLAINTIFF/RESPONDENT

WILLIAM KUNGU KARANJA..................3RD  PLAINTIFF/RESPONDENT

VS

HARRISON WACHIRA WANJOHI..............1ST DEFENDANT/APPLICANT

BERNARD MWANGI NGUNJU...................2ND DEFENDANT/APPLICANT

RULING

1. This application relates to a Notice of Motion dated the 14/2/19 and filed on the 14/2/19. It is brought under section 3A of the Civil Procedure Act and all other enabling provisions of the law. In it the Applicant seeks the following orders;

a. Spent.

b. That the Land Registrar Murang’a be authorized and directed to dispense with the production or surrender of the old title deeds for land parcel numbers LOC.14/KAMUNE/2487 and LOC.14/KAMUNE/2488 to facilitate full execution of the decree issued herein.

c. That the Land Registrar Murang’a be authorized and directed to register all documents necessary to transfer land parcel number LOC.14/KAMUNE/2487 and LOC.14/KAMUNE/2488 into the name of the Defendant HARRISON WACHIRA WANJOHI without requiring the co-operation of the Plaintiffs/Respondents.

d. That the Plaintiffs/Respondents be ordered to pay the costs of the application.

2. The application is premised on the grounds as follows;

a. That the Plaintiffs/Respondents are not willing to surrender the original old title deeds to the said land parcels for no reasons whatsoever.

b. That the Defendant/Applicant has paid all the required fees for transfer and presented the transfer necessary documents to the Land Registrar and the same may be misplaced within the land’s office unless are urgently registered.

c. That the Applicant presented the transfer forms and accompanied documents thereto to the Land Registrar Murang’a for transfer purposes and the Land Registrar requires the production of the original old title deeds before any transaction.

d. That it is just to so order.

3. It is supported by the affidavit of the Applicant where he deponed that judgment in his favour was issued on the 25/1/18 wherein the respondents were ordered to transfer the suit land to him. That the respondents have failed and /or refused to sign the necessary applications and transfer forms to facilitate the said transfers of the suit lands, as a result of which the Deputy Registrar executed the same pursuant to the said Court orders.

4. That upon presentation of the said documents in the Lands Registry, the Land Registrar Muranga, she requisitioned for the production of the original titles before effecting the registration of the transfers. That the said original titles are in possession of the Respondents who are unwilling to surrender the original deeds to the Land Registrar for no reason at all. That, it is in the interest of justice and fairness that the orders sought herein be granted.

5. The application is opposed by the Respondents through a Replying Affidavit dated the 11/3/19 and filed on even date. The 1st Respondent deposed that they are dissatisfied with the whole judgment delivered on 25/1/18 and have lodged an appeal in the appellate Court. That the typed proceedings have been requested through the registry to enable them prepare and file a record of appeal. That the typed proceedings are yet to be issued to their Counsel on record.

6. Further they opined that the application is intended to defeat their appeal which they contend has a high chance of success. They faulted the Applicant for not serving them with the application seeking the Registrar of this Court to execute the documents. They have just learned through this application that the documents were executed by the Deputy Registrar. They contend that should the application be allowed their appeal stands the chance of being rendered nugatory as they are apprehensive that the Applicant is keen to dispose the suit lands to third parties. Finally, the application is bad in law as it is not grounded in any known provisions in law.

7. The Applicant submitted that the Respondents did not complied with the orders of the Court by executing the documents necessary to effect transfer of the suit lands to him. That the Deputy Registrar did execute the documents as directed by the Court.

8. That there is no stay of execution orders in respect to this Honourable Court’s orders issued on the 25/1/18. Terming the intended appeal as an afterthought, he faulted the Respondents for failing to file an appeal within the statutory period neither have they given cogent reasons for failing to comply. Further that there is no appeal filed by the Respondents to warrant the denial of the orders sought by the Applicant in this application. The Applicant argued that he should not be denied the fruits of his judgment in a matter that was adjudged fully by the Court.

9. The Respondents, in their submissions have argued why the Court should grant them a stay of execution. They contended that the notice of appeal was filed on 26/1/2018 thus timeously hence no delay. That the respondents have an arguable appeal with overwhelming chances of appeal. Their appeal stands to be rendered nugatory if the application is allowed. No loss or prejudice would be occasioned upon the Applicant as he does not live on the suit lands and has only been leasing it out to third parties.

10. Quoting the case of Guardian Bank Limited Vs Book Point Limited and Guilders International Bank Limited CA 69 of 2017 where the Court cited the case of Ishmael Kagunyi Thande Vs Housing Finance Kenya Limited CA 157 of 2006, the Court stated that the jurisdiction of the Court under Rule 5(2) (b) is not only original but also discretionary. Two principles guide the Court in exercise of that jurisdiction. These principles are well settled. For an Applicant to succeed he must not only show that his appeal or intended appeal is arguable, but also that unless the Court grants him an injunction or stay as the case may be, the success of that appeal will be rendered nugatory.

11. Finally, they urged the Court to dismiss the application.

12. First, let me address the issue whether the Court should grant orders for stay of execution. To start with, the Respondents have purported to argue an application for stay of execution in their Replying Affidavit and submissions. Order 42 rule 6 provides as follows;

“No appeal or second appeal shall operate as a stay of execution or proceedingsunder a decree or order appealed from except appeal case of in so far as the Court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have such order set aside”.

13. The fact of an intended appeal or an appeal in itself does not of itself operate as a stay of execution proceedings. The Appellant must make an application for stay of execution from the Court appealed from. If the application is disallowed by the Court appealed from, the higher Court has powers, on application being made to consider such application and make such orders as may be applicable in the circumstances. Application for stay of execution may be made orally immediately after the delivery of judgment or ruling pending a formal application thereof.

14. In this case, the Plaintiff has neither made an oral nor formal application for stay. In the circumstances I decline to grant orders where the Court is yet to be moved as per the provisions of the rules of procedure. There is no application for stay of execution for the determination of the Court. I fortify myself with the decision in the case of M Charles Sande Vs Kenya Cooperative Creameries Limited (1992) KLR 314 where the Court of appeal stated as follows;

“we would endorse the well-established view that a judge has no power to decide an issue not raised before him but having said so, we must revert to the question of how or the manner in which issues are to be raised before a judge. In our view, the only way to raise issues before a judge is through pleadings and as far as we are aware, that has always been the legal position. All the rules of pleading and procedure are designed to crystalize the issue which a judge is to be called upon to determine and the parties are themselves made aware well in advance as to what the issues between them are.”

15. The second issue for determination is whether the Applicant should be granted the orders sought. It is on record that the Applicant is the judgement holder pursuant to the judgement of this Court delivered on the 25/1/2018. The application is seeking orders to direct the Land Registrar to dispense with the production of the original title which the Respondents have failed neglected and or are unwilling to produce to enable the registration of the transfer of the suit lands in the name of the applicant, the judgement creditor. The Applicant has deposed that the Land Registrar has refused to register the said transfers until the original titles are produced. The Applicant has urged the Court that in view of the non-compliance of the Respondents to, interalia, produce the original titles, he will not be able to enjoy the fruits of his judgement. He urged the Court to intervene by granting the orders.

16. This Court is now functus officio except for granting orders aimed at execution and facilitating the implementation and execution of the judgement issued herein. In the case of Joseph Odhiambo –Vs- Nyakundi Omari [2016] Eklr where the Hon Judge stated that;

“in this case , the Court’s jurisdiction is limited to enforcing its judgment and must not allow for an open window within which parties can relitigate decided matters”.

17. Equally the English Appellate Court Lamb & Sons Ltd V Rider[1948] 2 ALL ER 402had this to say about execution:

“………Execution is essentially a matter of procedure – machinery which the Court can, subject to the rules from time to time in force, operate for the purpose of enforcing its judgments or orders ……”.

18. Order 22 Rule 29 provides that where  a decree is for the delivery of any immovable property, possession thereof shall be delivered to the party to whom it has been adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if necessary, by removing any person bound by the decree who refuses to vacate the property;

19. I have looked at the Land Registration Act and note that the Land Registrar is not entirely helpless in a situation like this. Section 31 of Land Registration Act provides as follows;

“(1) If a certificate of title or a certificate of lease has been issued, then, unless it is filed in the registry or the Registrar dispenses with its production, it shall be produced on the registration of any dealing with the land or lease to which it relates, and, if the certificate of title or the certificate of lease shows all subsisting entries in the register, a note of the registration shall be made on the certificate of title or the certificate of lease

(2) Where the disposition is a transfer, the certificate shall, when produced, be cancelled, and in that case a new certificate may be issued to the new proprietor.”

20. The import of the above provision is that the Land Registrar has power to dispense with the production of the original title. There is no provision that he or she must obtain a Court order to do so. I have perused the Land Registration Act and the Act does not provide for elaborate procedure to be followed by the Land Registrar in dispensing the production of titles.

21. Further the Land Registrar is empowered under section 14 of the Land Registration Act  to require any person to produce any instrument certificate or other document or plan relating the land , lease or charge in question, and that person shall produce the same; summon any person to appear and give any information or explanation in respect to land, a lease, charge, instrument, certificate, document or plan relating to the land, lease or charge in question, and that person shall appear and give the information or explanation.

22. The judgement of the Court in this case decreed as follows;

a. The 1st Defendant’s Counterclaim succeeds and the 1st Defendant is hereby declared to have acquired an absolute title for all that piece of land known LOC.14/KAMUNE/1013 (new titles LOC.14/KAMUNE/2487 & 2488) measuring 1. 296 hectares and 0. 60 hectares respectively by virtue of adverse possession thereof having been in open exclusive and uninterrupted occupation of the suit land for a period in excess of 12 years.

b. The Plaintiffs be and hereby ordered to execute all documents of title in respect to LOC.14/KAMUNE/2487 & 2488 to the 1st Defendant and take all steps necessary to effect transfer to the 1st  Defendant.

c. In default the Deputy Registrar of this Court be and is hereby mandated to execute all appropriate documents to effect transfer of title Nos. LOC.14/KAMUNE/2487 & 2488 to the 1st Defendant.

d. Costs shall be in favour of the 1st Defendant payable by the Plaintiffs.

23. The title of the 1st Defendant is arising out of an operation of the law; that is by establishing a right in Adverse Possession. This is not a transfer nor a disposition in land. Ordinarily registration of such title do not require consent of the Land Control Board. By the same anology, there is no justification for the Land Registrar to want the production of the old title. That title has been subsumed by the new title arising out of the right to adverse possession. It is my considered view that were the transfer is pursuant to a Court order, more so , by Adverse Possession,  the Land Registrar need not require another Court order to dispense with the production of original titles.

24. Notwithstanding my views on the above, this Court is mandated under Article 259(1) of the Constitution to interpret the Constitution in a way that gives effect to the achievement of its objectives and the rights therein. The said Article provides as thus;

“This Constitution shall be interpreted in a manner that—

a) promotes its purposes, values and principles;

b) advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;

c) permits the development of the law; and

d) contributes to good governance.”

25. Protection of right to property is one of the rights and fundamental freedoms that Kenyans set aside for themselves as requiring Constitutional protection. Article 23 of the Constitution mandates this Court to grant reliefs in any proceedings brought under Art 22, one of such reliefs are declaration of rights in land. The ELC Act section 13 read together with sections 101 of the Land Registration Act, section 150 of Land Act gives this Court wide powers to deal with disputes in land in furtherance of granting reliefs as set out in the Constitution.

26. The long and shot of it is that this Court’s powers have not been ousted and I shall proceed to consider the application in respect to execution proceedings to five effect to the orders of this Court as set out in the Civil Procedure Act and the Civil Procedure Rules read together with section 14 of the Environment and Land Act which provides that a judgement award order or decree of this Court shall be enforceable in accordance with the rules. The rules include the Civil Procedure Rules and the Practice directions of the Court as issued by the Chief Justice, as the case may be. Section 19 enjoins this Court to apply the Civil Procedure Rules.

27. It is trite that a successful litigant is entitled to the fruits of his judgment and he may only be prevented from benefitting as such within the provisions  of the law .In  Machira T/A Machira & Co Advocates vs. East African Standard (No 2) [2002] KLR 63it was held that:

“……The ordinary principle is that a successful party is entitled to the fruits of his judgment or of any decision of the Court giving him success at any stage. That is trite knowledge and is one of the fundamental procedural values which is acknowledged and normally must be put into effect by the way applications for stay of further proceedings or execution, pending appeal are handled. In the application of that ordinary principle, the Court must have its sight firmly fixed on upholding the overriding objective of the rules of procedure for handling civil cases in Courts, which is to do justice in accordance with the law and to prevent abuse.”

28. I have perused the copies of the documents in support of the application to wit the transfer of land, land control board application, application for registration form dated the 6/10/18, letter of consent and the valuation of requisition of stamp duty. It is the Applicants case that the Land Registrar has refused to register the documents.  There is no evidence that the Land Registrar refused to register the transfer until the original titles are produced. This would have been in form of an endorsement of rejection on the registration or booking form which would give reasons for the rejection or in other communication from the Land Registrar indicating that the rejection of the transfers and calling for the production of the old titles. Further the Applicant has not demonstrated that he demanded for the old titles from the Respondents at all. It is also to be noted that the prayer sought in his application was not included in the Applicants Counterclaim.

29. This in my view is not a clear case that requires the intervention of the Court.

30. The application is struck out with costs in favour of the Respondents.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT MURANG’A THIS 4TH DAY OF JULY 2019.

J.G. KEMEI

JUDGE.

Delivered in open Court in the presence of;

Ms Wanjiku for the 1st – 3rd Plaintiffs/Respondents

1st Defendant/Applicant: Present in person

2nd Defendant/Applicant: Absent

Irene and Njeri, Court Assistants