1. The Applicant filed an Originating Summons in 2013 under the Married Women Property Act, which was determined by a Judgment delivered on 13 th February, 2020.
2. A decree was issued on 3 rd March, 2020, with the following orders.;
(i) THAT Plot No.85, 86 and 216 having been jointly acquired and developed shall be equally shared between the parties;
(ii) THAT Plot No.216 is a school run by the parties’ daughter and Plot No.86 is their son’s studio. Their children shall not be removed from the said properties; each parent may forfeit their share to the said children;
(iii) THAT Plot No.85 is the matrimonial home and belongs to both the Applicant and Respondent jointly, they may value the home and land on which the home is situated; each party may consider buying out the other. But before that the Applicant and Respondent shall determine where their children will reside; it shall not be feasible that the Applicant takes her ½ share of the home and shares with the children of the marriage and the Respondent shares his share of the home with the new family. Both parties have duty and responsibility to earmark their children's home before the division of the matrimonial home. The children shall not be left homeless;
(iv) THAT Narok/Mutara South Block 1/290, Plot No.6032 Kabati, Kjd/Kitengela/18879, Kahawa Sukari property and Plot No.1544 Kantafu shall be shared equally between the Applicant and Respondent;
(v) THAT Kabazi/Kabazi Block 4/93 Mutathini Nyahururu is a property whose ownership is contested and will not be available for division of matrimonial property at this stage. Ownership shall be determined first by parties in this Court or ELC Court. It is left pending at this stage awaiting confirmation of ownership and way forward;
(vi) THAT the Applicant and the Respondent shall retain motor vehicles Reg. Nos.KBH 987U and KBM 056D respectively;
(vii) THAT the Respondent owes the Applicant half of the proceeds of motor vehicle KAM 987U in the absence of proof that funds were used solely for family activity;
(viii) THAT the Respondent to provide evidence of shares held by the Applicant and thereafter all the shares in Eveready East Africa Limited, Safaricom Limited, Mumias Sugar Company Limited and Kenya Commercial Bank to be sold and shared equally between the parties.
3. The matter is presently before the Court on an application dated 5 th March, 2025 in which the Applicant seeks the following orders;
(a) THAT the honourable court be pleased to authorize the Deputy Registrar to sign all the necessary transfer documents on behalf of Charles Ndiritu Kimamo, the respondent herein in respect of all those parcels of land known as KJD/Kitengela/18879; Narok/Mutara South Block 1/290 and Mitubiri/Wempa/Block1/6032 to give effect to the decree of this court issued on 3 rd March, 2020;
(b) THAT the honourable court be pleased to issue an order directing the Land Registrars in Kajiado, Muranga and Laikipia to dispense with the production of copies of National Identity Card, PIN Certificate and passport size photo of Charles Ndiritu Kimamo the respondent herein when registering the necessary documents in respect of all those parcels of land known as KJD/Kitengela/18879; Narok/Mutara South Block 1/290 and Mitubiri/Wempa/Block 1/6032;
(c) THAT the costs of this application be in the cause.
4. The Applicant contends that the properties KJD/Kitengela/18879, Narok/Mutara South Block 1/290 and Mitubiri/Wempa/Block 1/6032 are the only properties with registered titles capable of transfer, while the remaining properties’ titles are yet to be processed. According to her, the Respondent, who is the registered proprietor, has declined to transfer her half share of the said properties and is intent on frustrating her enjoyment of the fruits of the judgment.
5. The respondent, in his replying affidavit, argues that the Applicant has been uncooperative in executing the decree. He stated that none of them knows where the property Narok/Mutara South Block 1/290 is situated and that he is in the process of locating it through a surveyor.
6. Regarding the property KJD/Kitengela/18879, he stated that the Respondent had placed a caution on the property, which led to the survey work being stopped.
7. Additionally, concerning the property Mitubiri/Wempa/Block 1/6032 (referred to as Plot No. 6032 Kabati in the decree), the Respondent suggested that the Applicant keep 1544 Kantafu/Kamulu (referred to as Plot No. 1544 Kantafu in the decree), while he keeps 6032, instead of dividing the properties.
Analysis and determination
8. The issue for determination is whether the Applicant has established a sufficient basis for the issuance of the orders sought.
9. The validity of the decree remains uncontested. There is no pending appeal against the judgment.
10. Section 98 of the Civil Procedure Act provides as follows;
“98. Execution of instruments by order of court
Where any person neglects or refuses to comply with a decree or order directing him to execute any conveyance, contract or other document, or to endorse any negotiable instrument, the court may, on such terms and conditions, if any, as it may determine, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contract, document or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it”.
11. The decree outlines the division of matrimonial properties and had outlined interim transition provisions concerning the parties’ children. If the transition has been appropriately managed, as the Respondent alludes, both parties are obliged to fulfil their respective responsibilities regarding the division of the matrimonial property in accordance with the decree.
12. While it is the Applicant who has moved the Court, the Respondent retains the right to initiate any actions necessary to compel the Applicant to fulfil her obligations, if any remain unmet and there is no cooperation towards execution; all parties should fully benefit from the decree.
13. The Court cannot issue an order to swap the two properties, Plot 6032 and Plot 1544, as proposed by the Respondent, unless both parties agree to modify the decree by consent.
14. In this case, it is clear that the decree has not been carried out concerning the three properties as requested in the application. The prayers sought are justified, and the Court issues the following orders with regard to the properties KJD/Kitengela/18879, Narok/Mutara South Block 1/290 and Mitubiri/Wempa/Block 1/6032;
a. The Respondent is granted 45 days from the date of service of this order to sign all necessary transfer documents that are required to give effect to the decree issued on 3 rd March, 2020;
b. In default of the Respondent signing the said documents, the Deputy Registrar of this Court is hereby authorized to execute and sign the said transfer documents on behalf of the Respondent;
c. Upon execution of the documents by the Deputy Registrar, the Lands Registrar is directed to dispense with the production of the title deeds, identity documents and any other documents that may be necessary to proceed with the registration of the transfer to give effect to the decree;
d. Each party shall bear own costs.
e. The matter shall be scheduled for mention before the Deputy Registrar to confirm compliance and to take directions as may be necessary towards execution of the orders issued.
15. Orders accordingly.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 25 TH day of MAY, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Advocate for Appellant: Mr. Osoro
Advocate for Respondent: Ms. Gulenywa
FAMILY HCC 38 OF 2013 RULING2
2. A decree was issued on 3 rd March, 2020, with the following orders.;
(i) THAT Plot No.85, 86 and 216 having been jointly acquired and developed shall be equally shared between the parties;
(ii) THAT Plot No.216 is a school run by the parties’ daughter and Plot No.86 is their son’s studio. Their children shall not be removed from the said properties; each parent may forfeit their share to the said children;
(iii) THAT Plot No.85 is the matrimonial home and belongs to both the Applicant and Respondent jointly, they may value the home and land on which the home is situated; each party may consider buying out the other. But before that the Applicant and Respondent shall determine where their children will reside; it shall not be feasible that the Applicant takes her ½ share of the home and shares with the children of the marriage and the Respondent shares his share of the home with the new family. Both parties have duty and responsibility to earmark their children's home before the division of the matrimonial home. The children shall not be left homeless;
(iv) THAT Narok/Mutara South Block 1/290, Plot No.6032 Kabati, Kjd/Kitengela/18879, Kahawa Sukari property and Plot No.1544 Kantafu shall be shared equally between the Applicant and Respondent;
(v) THAT Kabazi/Kabazi Block 4/93 Mutathini Nyahururu is a property whose ownership is contested and will not be available for division of matrimonial property at this stage. Ownership shall be determined first by parties in this Court or ELC Court. It is left pending at this stage awaiting confirmation of ownership and way forward;
(vi) THAT the Applicant and the Respondent shall retain motor vehicles Reg. Nos.KBH 987U and KBM 056D respectively;
(vii) THAT the Respondent owes the Applicant half of the proceeds of motor vehicle KAM 987U in the absence of proof that funds were used solely for family activity;
(viii) THAT the Respondent to provide evidence of shares held by the Applicant and thereafter all the shares in Eveready East Africa Limited, Safaricom Limited, Mumias Sugar Company Limited and Kenya Commercial Bank to be sold and shared equally between the parties.
3. The matter is presently before the Court on an application dated 5 th March, 2025 in which the Applicant seeks the following orders;
(a) THAT the honourable court be pleased to authorize the Deputy Registrar to sign all the necessary transfer documents on behalf of Charles Ndiritu Kimamo, the respondent herein in respect of all those parcels of land known as KJD/Kitengela/18879; Narok/Mutara South Block 1/290 and Mitubiri/Wempa/Block1/6032 to give effect to the decree of this court issued on 3 rd March, 2020;
(b) THAT the honourable court be pleased to issue an order directing the Land Registrars in Kajiado, Muranga and Laikipia to dispense with the production of copies of National Identity Card, PIN Certificate and passport size photo of Charles Ndiritu Kimamo the respondent herein when registering the necessary documents in respect of all those parcels of land known as KJD/Kitengela/18879; Narok/Mutara South Block 1/290 and Mitubiri/Wempa/Block 1/6032;
(c) THAT the costs of this application be in the cause.
4. The Applicant contends that the properties KJD/Kitengela/18879, Narok/Mutara South Block 1/290 and Mitubiri/Wempa/Block 1/6032 are the only properties with registered titles capable of transfer, while the remaining properties’ titles are yet to be processed. According to her, the Respondent, who is the registered proprietor, has declined to transfer her half share of the said properties and is intent on frustrating her enjoyment of the fruits of the judgment.
5. The respondent, in his replying affidavit, argues that the Applicant has been uncooperative in executing the decree. He stated that none of them knows where the property Narok/Mutara South Block 1/290 is situated and that he is in the process of locating it through a surveyor.
6. Regarding the property KJD/Kitengela/18879, he stated that the Respondent had placed a caution on the property, which led to the survey work being stopped.
7. Additionally, concerning the property Mitubiri/Wempa/Block 1/6032 (referred to as Plot No. 6032 Kabati in the decree), the Respondent suggested that the Applicant keep 1544 Kantafu/Kamulu (referred to as Plot No. 1544 Kantafu in the decree), while he keeps 6032, instead of dividing the properties.
Analysis and determination
8. The issue for determination is whether the Applicant has established a sufficient basis for the issuance of the orders sought.
9. The validity of the decree remains uncontested. There is no pending appeal against the judgment.
10. Section 98 of the Civil Procedure Act provides as follows;
“98. Execution of instruments by order of court
Where any person neglects or refuses to comply with a decree or order directing him to execute any conveyance, contract or other document, or to endorse any negotiable instrument, the court may, on such terms and conditions, if any, as it may determine, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contract, document or instrument so executed or endorsed shall operate and be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it”.
11. The decree outlines the division of matrimonial properties and had outlined interim transition provisions concerning the parties’ children. If the transition has been appropriately managed, as the Respondent alludes, both parties are obliged to fulfil their respective responsibilities regarding the division of the matrimonial property in accordance with the decree.
12. While it is the Applicant who has moved the Court, the Respondent retains the right to initiate any actions necessary to compel the Applicant to fulfil her obligations, if any remain unmet and there is no cooperation towards execution; all parties should fully benefit from the decree.
13. The Court cannot issue an order to swap the two properties, Plot 6032 and Plot 1544, as proposed by the Respondent, unless both parties agree to modify the decree by consent.
14. In this case, it is clear that the decree has not been carried out concerning the three properties as requested in the application. The prayers sought are justified, and the Court issues the following orders with regard to the properties KJD/Kitengela/18879, Narok/Mutara South Block 1/290 and Mitubiri/Wempa/Block 1/6032;
a. The Respondent is granted 45 days from the date of service of this order to sign all necessary transfer documents that are required to give effect to the decree issued on 3 rd March, 2020;
b. In default of the Respondent signing the said documents, the Deputy Registrar of this Court is hereby authorized to execute and sign the said transfer documents on behalf of the Respondent;
c. Upon execution of the documents by the Deputy Registrar, the Lands Registrar is directed to dispense with the production of the title deeds, identity documents and any other documents that may be necessary to proceed with the registration of the transfer to give effect to the decree;
d. Each party shall bear own costs.
e. The matter shall be scheduled for mention before the Deputy Registrar to confirm compliance and to take directions as may be necessary towards execution of the orders issued.
15. Orders accordingly.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 25 TH day of MAY, 2026.
C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Advocate for Appellant: Mr. Osoro
Advocate for Respondent: Ms. Gulenywa
FAMILY HCC 38 OF 2013 RULING2