[2017] KEELC 1979 (KLR)
The court found that the plaintiff's claim to the suit property had been dismissed and that a decree had been issued against her prior to her death. There was no evidence of any appeal, stay, or setting aside of the judgment or eviction orders. The applicant, having purchased the property from the 1st and 2nd...
Source-derived case information.
- Citation
- [2017] KEELC 1979 (KLR)
- Parties
- Plaintiff: Anna Wairimu; Defendant: Mwangi Njuguna; Defendant: Robertson Njugu Ngari; Defendant: Charles Kanja Gatigi; Defendant: Laetitia Wakonyu Kanja; Defendant: James Mariara Rungu; Defendant: Margaret Wairimu Mar; Defendant: Charles Githagui Eliud; Defendant: Jane Wanja Githagui
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 95 of 2016
- Procedural Posture
- Notice of Motion / Ruling on Application to Lift Caution
- Outcome
- application allowed
- Judges
- L Waithaka
- Legal Topics
- Removal of Caution, Ownership Disputes, Land Registration, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anna Wairimu
Plaintiff
Mwangi Njuguna
Defendant
Robertson Njugu Ngari
Defendant
Charles Kanja Gatigi
Defendant
Laetitia Wakonyu Kanja
Defendant
James Mariara Rungu
Defendant
Margaret Wairimu Mar
Defendant
Charles Githagui Eliud
Defendant
Jane Wanja Githagui
Defendant
Procedural Posture
Notice of Motion / Ruling on Application to Lift Caution
Legal Issues
- 1 Whether the applicant has established grounds for removal or lifting of the caution on the suit property register.
- 2 Whether the estate of the deceased plaintiff/respondent will suffer prejudice if the caution is removed.
Ratio Decidendi
The court found that the plaintiff's claim to the suit property had been dismissed and that a decree had been issued against her prior to her death. There was no evidence of any appeal, stay, or setting aside of the judgment or eviction orders. The applicant, having purchased the property from the 1st and 2nd defendants, was recognized as the bona fide owner. The estate of the deceased plaintiff/respondent was not represented, and there was nothing on record to suggest that removal of the caution would prejudice the estate. Consequently, the court held that the applicant had established sufficient grounds for the removal of the caution and allowed the application as prayed.
Court Disposition
application allowed
Orders
- The caution lodged on the register to parcel Nyeri/Waraza/369 is removed or lifted.
- Application allowed in terms of prayers (1) and (2) of the notice of motion.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
ELC NO. 95 OF 2016
ANNA WAIRIMU.........................................................PLAINTIFF
-VERSUS-
MWANGI NJUGUNA......................................1ST DEFENDANT
ROBERTSON NJUGU NGARI......................2ND DEFENDANT
CHARLESKANJA GATIGI......3RD DEFENDANT/APPLICANT
LAETITIA WAKONYU KANJA......................4TH DEFENDANT
JAMES MARIARA RUNGU...........................5TH DEFENDANT
MARGARET WAIRIMU MAR........................6TH DEFENDANT
CHARLES GITHAGUI ELIUD........................7TH DEFENDANT
JANE WANJA GITHAGUI.............................8TH DEFENDANT
RULING
1. By notice of motion dated 12th May, 2016 and filed on the same day, the 3rd defendant herein, Charles Kanja P. Gatigi (the applicant) moved the court for removal and/or lifting of the caution lodged on the register to the parcel of land known as Nyeri/Waraza/369 (“the suit property”).
2. The application is premised on the ground that the claim in respect of which the caution was lodged was dismissed and a decree issued against the cautioner.
3. Explaining that he has suffered prejudice owing to continued subsistence of the caution, the applicant urges the court to allow the application as prayed.
4. The application is supported by the affidavit of Simon Wachira Mwai, the Chief, Warazo Location, who has deposed that he was approached by the applicant to provide information to this court concerning the death of the plaintiff/respondent.
5. Through his affidavit sworn on 12th September 2016, Mr. Mwai confirms that the plaintiff herein died on 16th December, 2006 while undergoing treatment at Nyeri General Hospital and that the 3rd and 4th defendants are the sole owners of the suit property, Land Parcel No.Nyeri /Waraza/369.
6. The sole issue for determination is whether the applicant has made up a case for being granted the orders sought.
7. The court record confirms that the plaintiff died on 11th December, 2006 and that by that time, she had lost the claim she had preferred against the defendants. The court record further shows that by the time she passed on, orders of eviction had issued against her.
8. The judgment of Juma J. as he then was, delivered on 16th November, 1999 shows that the applicant is the bona fide owner of the suit property having bought it from the 1st and 2nd Defendant.
9. Though the estate of the plaintiff/respondent is not represented in these proceedings, there being nothing in the court record to show that the judgment of the court, dismissing her claim against the defendants’ in this matter, was appealed from stayed and/or set aside, I agree with the applicant that the estate of the plaintiff/respondent will suffer no prejudice if the caution is removed or lifted.
10. The upshot of the foregoing is that the application herein has merit and is allowed in terms of prayers (1) and (2).
Dated and signed at Nyeri this 15th day of June, 2017.
L N WAITHAKA
JUDGE
Delivered and signed in Nyeri this 27th Day of June 2017.
NGAAH JAIRUS