[2011] KEHC 2176 (KLR)
The court held that the defendants/applicants could not seek the removal of the caveat after the suit had been dismissed for want of prosecution, as they had not filed a counterclaim or obtained judgment entitling them to such relief. Furthermore, the application was procedurally defective because the Registrar of...
Source-derived case information.
- Citation
- [2011] KEHC 2176 (KLR)
- Parties
- Plaintiff: Alice Linda Kiranga; Plaintiff: Francis Lukoye Kiranga; Plaintiff: Edward Allan Robinson; Defendant: Dionyusus M. Kinyua; Defendant: Jonah Okongo Ouma
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 3895 of 1990
- Procedural Posture
- Civil Suit / Ruling on Post Dismissal Application to Lift Caveat
- Outcome
- application dismissed with costs
- Legal Topics
- Removal of Caveat, Want of Prosecution, Procedure for Caveat Removal, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alice Linda Kiranga
Plaintiff
Francis Lukoye Kiranga
Plaintiff
Edward Allan Robinson
Plaintiff
Dionyusus M. Kinyua
Defendant
Jonah Okongo Ouma
Defendant
Procedural Posture
Civil Suit / Ruling on Post Dismissal Application to Lift Caveat
Legal Issues
- 1 Whether the defendants/applicants can seek removal of a caveat after the suit has been dismissed for want of prosecution.
- 2 Whether the application for removal of caveat is properly before the court in the absence of a counterclaim or judgment.
- 3 Whether the Registrar of Titles, not being a party to the suit, should have been served with the application.
Ratio Decidendi
The court held that the defendants/applicants could not seek the removal of the caveat after the suit had been dismissed for want of prosecution, as they had not filed a counterclaim or obtained judgment entitling them to such relief. Furthermore, the application was procedurally defective because the Registrar of Titles, who would be responsible for lifting the caveat, was not a party to the suit and had not been served with the application. The court also noted that Section 57(5) of the Registration of Titles Act requires that an application for removal of a caveat be made by summons, which was not done in this case. For these reasons, the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to lift the caveat registered by the 3rd plaintiff is dismissed with costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL SUIT NO. 3895 OF 1990
ALICE LINDA KIRANGA.........................................................................1ST PLAINTIFF/RESPONDENT
FRANCIS LUKOYE KIRANGA...............................................................2ND PLAINTIFF/RESPONDENT
EDWARD ALLAN ROBINSON..............................................................3RD PLAINTIFF/RESPONDENT
V E R S U S
DIONYUSUS M. KINYUA........................................................................1ST DEFENDANT/APPLICANT
JONAH OKONGO OUMA......................................................................2ND DEFENDANT/APPLICANT
R U L I N G
This suit by the Plaintiffs against the Defendants was on 2nd November 2010 dismissed with costs for want of prosecution. On 18th January 2011 the 2nd and 3rd Defendants (the same parties who had applied for the dismissal) filed this motion under sections 1A, 1B and 3A of the Civil Procedure Act to have the caveat registered on parcel L.R. No. 14930 I.R. 48160 as I.R. 888/18 and/or any other caveat by one Edward Allan Robinson (the 3rd Plaintiff) be lifted by the Lands Registrar. The Defendants say that the Land Registrar has advised them that they cannot transact on the parcel owing to the caveat registered by the 3rd Plaintiff. The parcel has an outstanding rates of KShs. 2,348,453/= which the Defendants want to pay, but that they can’t without the caveat.
This suit was not by the Defendants and neither did they have a counterclaim for the removal of the caveat, or at all. They have no judgment which they seek to execute. The Registrar of Titles was not a party to the suit and the application was not served on him. Under Section 57 (5) of the Registration of Titles Act (Cap.281) an application for removal of caveat h as to be by summons.
In short, the application is dismissed with costs.
DATED AND DELIVERD AT NAIROBITHIS 31ST DAY OF MARCH 2011
A.O. MUCHELULE
J U D G E