[2018] KEHC 7727 (KLR)
The court found that the prohibitory order registered against title Mwerua/Gitaku/269 was expressly predicated on the pendency of High Court Civil Appeal No. 48 of 1996. Since that appeal was dismissed on 7th October 2004, there was no longer any legal or factual basis for the prohibitory order to remain in force....
Source-derived case information.
- Citation
- [2018] KEHC 7727 (KLR)
- Parties
- Appellant: Beth Wambui Njau; Respondent: Regina Wangari Gacira
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 6 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Lift Prohibitory Order
- Outcome
- application allowed
- Judges
- NA Matheka
- Legal Topics
- Prohibitory Orders, Lifting of Caution, Title Registration, Appeal Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beth Wambui Njau
Appellant
Regina Wangari Gacira
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Lift Prohibitory Order
Legal Issues
- 1 Whether the prohibitory order registered against title Mwerua/Gitaku/269 should be lifted following the dismissal of the related appeal.
- 2 Whether there is any legal basis for maintaining the caution and prohibitory orders after the appeal was dismissed.
Ratio Decidendi
The court found that the prohibitory order registered against title Mwerua/Gitaku/269 was expressly predicated on the pendency of High Court Civil Appeal No. 48 of 1996. Since that appeal was dismissed on 7th October 2004, there was no longer any legal or factual basis for the prohibitory order to remain in force. The respondent, despite being served, did not oppose the application. The court concluded that the application was merited and that the prohibitory order should be lifted to reflect the finality of the dismissed appeal.
Court Disposition
application allowed
Orders
- The prohibitory order registered against Mwerua/Gitaku/269 on 19th January 1999 is hereby lifted.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
HIGH COURT MISC. APPLICATION NO. 6 OF 2017
BETH WAMBUI NJAU............................APPELLANT /RESPONDENT
-V E R S U S –
REGINA WANGARI GACIRA.................RESPONDENT/APPLICANT
R U L I N G
Before me is the Notice of Motion dated 6th March 2017 brought under section 3A of the Civil Procedure Act and all other enabling laws.
The application sought three orders.
a) Spent
b) Spent
c) The caution and prohibitory orders registered against the title Mwerua/Gitaku/269 be lifted.
The application is supported by the affidavit of Maina Kagio Advocate. The court file had been missing since 7th August 2016 hence the first 2 prayers seeking to have a skeleton file opened and the file herein reconstructed. The 2 orders were spent upon the file being traced by the registry .
The appellant Beth Wambui in HCCA no. 48 of 1996, had caused a prohibitory order to be registered against the above mentioned title pending the hearing and determination of the appeal.
The appeal was dismissed on 7th October 2004. The green card abstract annexed to the affidavit clearly indicates that the prohibitory order was predicated on the pending appeal High Court Civil Appeal No. 48/1996.
Following the dismissal of the appeal, there is clearly no leg upon which the prohibitory order against the title can stand.
This application was served upon the firm of J. Kibicho & Co. Advocates for the respondent.
There was no appearance despite service, and receipt of the hearing notice on 29th September 2017 way before the hearing date of 4th December 2017 .
The application is unopposed, and even without that, it is merited.
The prohibitory order registered against Mwerua/Gitaku/269 on 19th January 1999 is and is hereby lifted with costs to the applicant.
Dated, delivered and signed this 26th Day of January 2018 at Nyeri
TERESIA M MATHEKA
JUDGE
Court Assistant Hariet.
Ms. Macharia holding brief for Maina Kagio for applicant
J.K Kibicho for respondent N/A