Patrick Gakuha Mwangi & 3 Others v Eunice Waithira Ndungu (Sued as an Administrator of the estate of David Ndungu Mwangi (deceased)) & Another

2. This matter was transferred to this Court by an order made on 22.1.2019 by the High Court. Before this date, an order for reconstruction of the file had been made on 8.11.2018, through an application dated 23.1.2017. In that application, the applicant had averred that Chan Singh 8 in 1975 had held Land Title Limuru /Bibironi/ 360 as held in trust to be shared by the two houses of the deceased, and the other 50% to go to the applicants. 3. In the said application, there was attached an order dated 13.11.1980 where similar orders as in the instant application were made by consent of the lawyers of the parties on record. 4. The Court record shows that on 17.9.2019 the matter was referred to mediation. The mediation agreement reached on 14.2.2020 was later adopted as an order of the Court on 15.9.2020. 5. Therefore, it appears a caution against the Title precipitated the filing of an application dated 22.10. 2024. The application was allowed on 10.2.2025 in terms of joining the cautioner as a party to the suit, said to claim MILIMANI ELC NO. 14 OF 2019 2

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beneficial interest in Land Title number Limuru/Bibironi/1781. 6. The 2nd prayer allowed was that the Land Registrar, Kiambu, remove the caution over the Land Title as registered by the cautioner, Stephen Mwangi. 7. The order made after the mediation agreement dated 6.11.2020 is that; a) The order issued on 13.1.2010 in Nairobi High Court Case No. 6/2005 (1515 of 2002) (Originating Summons) be implemented in full. b) Limuru/Bibirioni/360 measuring 12 Ha be divided into two equal portions, each portion measuring 0.62 Ha in favour of the applicant, and the other half to be shared by the four respondents. c) Land Title Number Limuru/Bibirioni/1781 measuring 0.2 Ha and Limuru/Bibirioni /1781 measuring 1.21 Ha previously issued in compliance with orders made on 13.1.2010 and MILIMANI ELC NO. 14 OF 2019 3

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rectified in terms of acreage so that each of the two parcels measures 0.62 Ha. With this context in mind, the Court is asked to order the Deputy Registrar to sign an executory document to effect the decree as per the orders made on 15.9.2020. 8. Order 22 Rule 18 of the Civil Procedure Rules provides that where a decree is more than one year old, a notice to show cause must precede execution of the said decree against the judgment debtor. 9. In Grand Creek LLC & Anor vs Nathan ChesangMoson (2015)KEHC 2288 KLR, the Court said that a notice to show cause must be served upon the judgment debtor. 10. In Rosslyn Development Ltd vs Bidco Oil Refineries Ltd (2014) eKLR, the Court lifted the warrants of arrest for failure by the decree holder to comply with Order 22 Rule 18 (1) (a) of the Civil Procedure Rules. The Court emphasized that the right to execute is only available after a party holding a decree that is over one year in age has fully complied with the relevant MILIMANI ELC NO. 14 OF 2019 4

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provision of the law as provided in the Civil Procedure Rules. 11. Section 94 of the Civil Procedure Act requires that where a decree is passed, in the exercise of the Court’s original jurisdiction and costs are yet to be ascertained, a party must first obtain leave of the Court before execution can issue. 12. In this application, the Court has not seen any attached decree, which was sought and obtained; it was served upon the judgment debtors, who, despite such service and notice to comply, have failed, refused and/or neglected to comply with it. 13. The Court is asked to order the Deputy Registrar to sign executory documents. The Court observes that none of the prepared documents have been attached to the affidavit in support, which the judgment debtors were served with and directed to comply with, but which for six years have failed to adhere to 14. A decree of Court must comply with Order 21, Civil Procedure Rules. It must bear the date when the judgment was delivered. It must contain the names and description MILIMANI ELC NO. 14 OF 2019 5

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of the parties, particulars of the claim and the reliefs granted or other determination of the suit. It must state by whom or out of which property or in what proportion the costs incurred in the suit are to be paid. 15. Order 21 Rule 10 of the Civil Procedure Rules states that where the subject matter is immovable property, the decree shall contain a description of such property sufficient to identify the same. Order 21 Rule 18 of the Civil Procedure Rules relates to a decree in a suit for partition of property or separate possession of a share. 16. Order 22 Rule 18 of the Civil Procedure Rules provides for instances 2 executing a decree against a legal representative of a party to the decree. Since issuance of the order in 2020, it is not clear what the decree holder has done with the same; from the supporting affidavit, it is crystal clear that the applicant has not followed the law on execution procedures to form a basis for why the Deputy Registrar of this Court should be ordered to step in. 17. The Court finds the application dated 10.12.2025 incompetent and lacking merits. MILIMANI ELC NO. 14 OF 2019 6

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18. It is dismissed with costs. 19. File is marked closed. 20. Orders accordingly DATED, SIGNED AND DELIVERED ON 30TH DAY OF SEPTEMBER,2026 …………………………… HON C.K NZILI JUDGE In the presence of ; Miss Kamau for Njenga for applicant Court assistant ; Julius MILIMANI ELC NO. 14 OF 2019 7

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