Introduction
1. By a notice of motion dated 16th October 2024, the plaintiff/applicant seeks orders calculated at facilitating execution of a decree issued in his favour concerning the parcel of land known as Baringo/Kapropita/308.
2. Explaining that he has been prevented from executing the decree issued in his favour owing to an existing encumbrance in the register of the suit property, an undischarged charge registered in favour of Standard Chartered Bank Limited, the applicant seeks an order compelling the respondent, who is the administratix of the estate of Kipkelwon A. Chebet to execute discharge of charge forms in respect of the suit property failing which the Deputy Registrar of this court be authorized to sign all conveyance documents necessary to discharge the charge.
3. The applicant also seeks the following consequential orders:-
1. An order directing the Land Registrar to register the discharge of charge over the suit property, Baringo/Kapropita/308, subject to there being no liability for the debt by the estate of the deceased chargor;
2. An order directing service of the court order issued pursuant to this ruling on Standard Chartered Bank for compliance and release of the discharge form and original title to the applicant for registration;
3. Costs of the application.
4. As can discerned from the grounds on the face of the application and the affidavit sworn in support thereof, the application is premised on the grounds that vide a decree of this court issued on 25th October 2018, the applicant was declared the lawful owner of the parcel of land known as Baringo/Kapropita/308; that owing to existence of an undischarged charge in favour of Standard Chartered Bank over the suit property, the applicant has been unable to execute the decree issued in his favour and that despite having been requested by the applicant to sign the discharge of charge forms to facilitate execution of the decree, the respondent, Paulina Kobilo Kipkelwon, who is the administratix of the estate of Kipkelwon A. Chebet, has refused to heed the request thereby compromising the applicant’s efforts to enforce the decree issued in his favour.
5. Despite having been served with the application and a hearing notice in respect thereof, as attested by the affidavit of service of Victor Kipkemboi Kiptoo sworn on 7th January 2025, the respondent neither filed a response to the application nor attended court for hearing of the application.
6. On 14th January 2025, when the application came up for hearing, counsel for the applicant urged the court to allow the application as prayed as it is un opposed.
Analysis and determination
7. As pointed out herein above, the applicant seeks orders aimed at facilitating execution of a decree issued in his favour by this court.
8. Having read and considered the circumstances leading to the filing of the application and the reasons given for filing the application, in the absence of any evidence or explaination given by the respondent to contradict the account/explanation offered by the applicant, I find and hold that the applicant has made up a case for being granted the orders sought, which orders I grant him as sought in the application dated 16th October 2024.
9. Orders accordingly.
Dated, signed and delivered at Iten this 10th day of February, 2025.
Ruling delivered virtually in the presence of:-
Ms. Salim for the plaintiff/respondent
N/A for the defendant
Court Assistant: Christine