BERNARD KIHUMBA MWAI & ANR VS GLADYS WAMBUI WACHIRA

1.    The Notice of Motion dated 3rd July 2025, filed by the Applicant, seeks the following orders:
1)    THAT the Respondent’s structure and/or developments on LR NO.IRIAINI/CHEHE/1617 be removed from the said land parcel.
2)    THAT the Respondents be ordered to bear the cost of and the removal of the structures/developments and the costs of this application.
3)    THAT the officer in charge of Kiaruhiu Police Station be directed to provide security during the exercise of removal of the Respondent’s properties from LR NO.IRIAINI/CHEHE/1617.
4)    Any other relief that the Honourable Court may deem fit to grant.
2.    The application is supported by the affidavit of the Applicant/Respondent, Gladys Wambui Wachira, in which she deposed that on 16th June 2023, the Court dismissed the Respondent's claim over LR NO. IRIAINI/CHECHE/1617, and gave the Respondents thirty days to clear and remove any structures and/or developments they had erected on the suit land. In default, the Applicant was granted the liberty to remove any such structures and/or developments at the Respondents' cost. The Applicant claims that the Respondents have refused to comply with the Court order and have been hostile to her attempts to remove their belongings from the suit land. The Applicant claims that in the circumstances, she requires security from the police.

The Respondents’ Notice of Preliminary Objection
3.    The Respondents filed a notice of preliminary objection dated 21st July 2025 on the following grounds:
1)    This Honourable Court is divested of jurisdiction to hear and determine the instant application as the prayers sought in the Application are res judicata.
2)    This Honourable Court is functus officio, having delivered its judgment in this matter on 16th June 2023
4.    This preliminary objection was dismissed with costs by the ruling of the Hon Justice Mugo Kamau on 25th July 2025
The Respondents' replying Affidavit.
5.    The 1st Respondent filed an affidavit on 29th October 2025. He deposed that the Applicant was granted title to LR NO.IRIAINI/CHEHE/1617 pursuant to a succession cause in High Court P & A Cause No. 789 of 2012.
He stated that the beneficiaries of the Deceased, Bildad Kihuria, filed an application dated 4th June 2009 seeking to revoke the grant, but that the Court dismissed the said application. The said beneficiaries applied for review of the judgment on the grounds of the discovery of new and important matters that were not within their knowledge. They seek an order to maintain the current status quo and cancellation of the title deeds issued as a result of the subdivision of LR NO.IRIAINI/CHEHE/853, including the suit parcel of land LR NO.IRIAINI/CHEHE/1617.
6.    The Respondents claim that if the orders sought in this application are granted, they will defeat their application before the High Court. They further deposed that this Court should await the decision of the High Court on their application and prayed that the instant application be dismissed with costs.

The Applicant’s written submissions
7.    Counsel for the Applicant submitted that their application stands unopposed, as the Respondents’ preliminary objection was dismissed on the 25th of July 2025. It is their submission that despite the Court's judgment and decree, the Applicants are yet to clear and remove any structures and developments from the suit land and have been hostile to the Applicant's attempts to remove them.
8.    It is their submission that Court orders are not made in vain and that any court which gives orders will assist in the execution of its orders, citing and relying on the authorities of: Re-Estate of late Racheal Mukuhi Ndumbi(Deceased)(Succession Cause 598 of 2012(2025)eKLR,  Kitur & another v. Land Registrar Nandi County(Environment & Land Case 100 of 2021)

The Respondents’ written submissions
9.    Counsel for the Respondents submitted that the Applicant obtained the title to the suit land pursuant to the succession case HC FP&A cause no. 789 of 2012, and they have now filed an application seeking review of the judgment of the said Court.
10.    The Respondents submit that the legality of the suit property’s title has not been settled and is a subject matter of litigation before the High Court. Counsel for the Respondents invited the Court not to exercise its discretion to grant the orders sought by the Applicant until the application before the High Court is heard and determined on the merits. They concluded that the instant application is premature and should be dismissed.
Analysis and Determination
11.    The present application seeks enforcement and execution of the court’s Judgment dated 16th June 2023 and Decree issued on 21st August 2023. This suit was instituted by the Respondents through the Originating Summons dated 2nd October 2019, where they sought determination of the following issues relating to the suit land parcel No. IRIAINI/CHECHE/1617.
(a)    Whether the Applicants have been in continuous and adverse possession of parcel No. Iriaini/Cheche/1617 from well before 11th May, 2000 to date;
(b)    Whether the said occupation and utilisation of land in (a) was continuous and exclusive and has spanned for over 12 years;
(c)    Whether the Applicants have, since 2005 and 2006 respectively, been harvesting the tea bushes planted on the said land by themselves and Wachira Kibuchi(deceased), the predecessor in possession to Gladys Wambui, whether, without let or hindrance from the Respondent herein;
(d)    Whether the Respondent would be entitled, under the law, to enforce a Judgment of a Court entered on 11th May, 2000 vide Nairobi High Court Succession Cause No. 62 of 1991 as against the Applicants to defeat the already acquired prescriptive rights in adverse possession;
(e)    Whether the Applicants herein have, by virtue of their continuous occupation and adverse possession over the full extent of land captured in the aforesaid Judgment of the Court, and later vide title number Iriaini/Cheche/1617, acquired prescriptive rights over the said extent of land, entitling them to be declared owners of the said land;
(f)    Whether the Land Registrar Nyeri should be ordered to cancel the registration of the Respondent as the owner of parcel No. Iriaini/Cheche/1617 and in her place register the Applicants herein as owners of the said parcel; and
(g)    Who should pay the costs of these summons?
12.    By a judgment of this court dated 16th June 2023, the Court made the following orders;
“In the result, I was not persuaded that the Applicants have proved their case to the required standard. As they claim to have planted tea bushes on the land and built various structures thereon, I make the following orders for the ends of justice and to bring this matter to an end.
(a)     The issues raised under Prayers (a) to (f) of the Applicants’ Originating Summons dated 2nd October, 2019, are answered in the negative with the result that the said Originating Summons is dismissed.
(b)     The Applicants have 30 days from today to clear and remove any structures and or developments they may have erected on the suit land. In default, the Respondent shall be at liberty to remove any such structures and/or developments at the Applicants’ cost; and
(c)     The Applicants shall bear the costs of this suit.”

13.    It has now been more than 2 years since Hon. J.O. Olola J delivered the judgment on 16th June 2023, and the Applicant states that the Respondents are yet to comply with the Decree.
14.    On matters of execution of a decree, the Civil Procedure Act, CAP 21, provides at Section 34(1) that:
    “All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.”
15.    Further, Section 38 thereof grants the Court that issued a decree the following powers:
    “Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution of the decree—
(a)    by delivery of any property specifically decreed;
(b)    by attachment and sale, or by sale without attachment, of any property;
(c)    by attachment of debts;
(d)    by arrest and detention in prison of any person;
(e)    by appointing a receiver; or
(f)    in such other manner as the nature of the relief granted may require:”
16.    This Court has full authority and discretion to order execution of orders and/or decrees it issues. The Applicant sought an order that the structures and developments on the suit land be removed at the Respondents’ costs as was decreed.
17.    J.G Kemei J in the case of Macharia Waiguru v Attorney General & 2 others [2017] eKLR pronounced that:
    “It is trite law that Court orders are not made in vain and are meant to be complied with. If, for any reason, a party has difficulty in complying with Court orders, the honourable thing to do is to come back to Court and explain the difficulties faced by the need to comply with the order. Once a Court order is made in a suit, the same is valid unless set aside on review or on appeal.”
18.    The Respondents herein state that they have sought review of the decision of the High Court in Succession Cause No. 789 of 2012. However, the High Court is a different court whose jurisdiction is vested under Article 165 of the Constitution of Kenya, while the jurisdiction of the Environment and Land Court is under Article 162(2) (b) to hear cases relating to the environment and the use and occupation of, and title to, land. This Court pronounced judgment, and a decree was issued in this suit. There are no orders to stay the execution of the decree of this Court. In the Court’s view, the Respondents have no option but to obey and implement the orders of the Court, regardless of any other ongoing case in any other court.
19.    The Court of Appeal in the case of Shimmers Plaza Limited v National Bank of Kenya Limited (Civil Appeal 33 of 2012) [2015] KECA 945 (KLR) emphasised that:
    “It cannot be gainsaid that the duty to obey the law by all individuals and institutions is paramount in the maintenance of the rule of law, good order and the due administration of justice. As stated by Romer, L.J. In Hadkinson –vs- Hadkinson (1952) ALL ER 567,
    “It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that 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 an order believes it to be irregular or even void. Further, this Court in Refrigeration and Kitchen Utensils Ltd. –vs- Gulabchand Popatlal Shah & Another, -Civil Application No.39 of 1990 held, “… It is essential for the maintenance of the rule of law and good order that the authority and dignity of our courts is upheld at all times.”
20.    Further, considering the inherent power conferred to the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process, under Section 3A of the Civil Procedure Act, the Court finds that the application dated 3rd July 2025 has merit and makes the following orders:
(a)    The Respondent’s structures and/or developments on LR NO.IRIAINI/CHEHE/1617 be removed from the said land.
(b)    The Respondents are hereby ordered to bear the cost of and the removal of the structures/developments.
(c)    The officer in charge of Kiaruhiu Police Station is hereby directed to provide security during the exercise of removal of the Respondent’s properties from LR NO.IRIAINI/CHEHE/1617.
(d)    The Respondents will pay the costs of this application.
Dated, Signed and Delivered at Nyeri, this 11th day of December 2025

Delivered in the Presence of:-
Ms Kendi -Court Assistant
Barasa    -    for Applicant
M/S Mwai    -    for Respondents