[2018] KEELC 965 (KLR)
The Environment and Land Court lacks jurisdiction to lift or set aside a caveat or order registered against a property title when such order was issued by the Court of Appeal. The proper forum for seeking the removal or variation of such an order is the Court of Appeal itself, not the trial court. The application...
Source-derived case information.
- Citation
- [2018] KEELC 965 (KLR)
- Parties
- Plaintiff: Carlos Santos Lazano; Defendant: M. K. Ndau t/a NdampER Enterprises; Defendant: Housing Finance Company; Defendant: Domiziano Kaburu Njeru; Defendant: Harun Wakanene Mbuthia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 380 of 1994
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Legal Topics
- Caveats and Injunctions, Jurisdiction of Courts, Removal of Caveat, Court Orders on Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Carlos Santos Lazano
Plaintiff
M. K. Ndau t/a NdampER Enterprises
Defendant
Housing Finance Company
Defendant
Domiziano Kaburu Njeru
Defendant
Harun Wakanene Mbuthia
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to lift a caveat registered pursuant to an order of the Court of Appeal.
- 2 Whether the application to lift the caveat should have been made before the Court of Appeal.
Ratio Decidendi
The Environment and Land Court lacks jurisdiction to lift or set aside a caveat or order registered against a property title when such order was issued by the Court of Appeal. The proper forum for seeking the removal or variation of such an order is the Court of Appeal itself, not the trial court. The application before the court was therefore incompetent and without merit, as the court cannot interfere with orders made by a superior court. The application was accordingly dismissed.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 17th July, 2018 is dismissed.
- Costs to be in the cause.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT NAIROBI
ELC SUIT NO. 380OF 1994
FORMERLY HIGH COURT CIVIL SUIT NO. 298 OF 1994
CARLOS SANTOS LAZANO...............................................................PLAINTIFF
VERSUS
M. K. NDAU T/A NDAMPER ENTERPRISES........................1ST DEFENDANT
HOUSING FINANCE COMPANY............................................2ND DEFENDANT
DOMIZIANO KABURU NJERU..............................................3RD DEFENDANT
HARUN WAKANENE MBUTHIA...........................................4TH DEFENDANT
RULING
I have considered the 4th defendants application dated 17th July, 2018 together with the affidavits sworn in support thereof by the 4th defendants legal representative and her advocate Mr. John Kingori Kariuki in support of the application. I have noted that contrary to the assertion by the 4th defendant that there is a caveat that was registered against the title of the suit property by the plaintiff. What was registered against the title of L.R No. 1160/290 was a court order issued by the Court of Appeal in Nairobi Civil Application No. NAI. 218 of 1998. This is the caveat that the 4th defendant has sought to lift. I am unable to accede to the 4th defendant’s application for the simple reason that the order sought to be lifted was not issued by his court but by the Court of Appeal. Thus court has no power to set aside, discharge or lit the orders issued by the Court of Appeal. As I pointed out to the 4th defendant’s advocate during the hearing of the application, the application before me should have been made in the court of Appeal in Nairobi Civil Application No. NAI. 218 of 1998 where the order that was registered against the title of the suit property was made. It is the court of Appeal that made the order and it is the same court that has the power to set it aside. For the foregoing reasons, I find no merit in the Notice of Motion dated 17th July, 2018. The application is dismissed with costs to be in the cause.
Delivered and Dated at Nairobi this 1st day of November 2018
S. OKONG’O
JUDGE
Ruling read in open court in the presence of:
No appearance for the Plaintiff
No appearance for 1st, 2nd and 3rd defendants
Mr. Muriithi h/b for Kingori for 4th Defendant
Catherine - Court Assistant