[2021] KEELC 676 (KLR)
The court found that the applicant failed to provide sufficient evidence clarifying whether the restrictions were registered pursuant to a court order or if the investigations by the C.I.D. officers had concluded. Additionally, there was no evidence of service of the application upon the substituted respondent,...
Source-derived case information.
- Citation
- [2021] KEELC 676 (KLR)
- Parties
- Plaintiff: Catherine Nkriote; Defendant: Stephen Marete; Defendant: Joseph Murithi M’Marete
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 43 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application for Removal of Land Restrictions
- Outcome
- application dismissed
- Legal Topics
- Removal of Restrictions, Land Registration, Post Judgment Applications, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catherine Nkriote
Plaintiff
Stephen Marete
Defendant
Joseph Murithi M’Marete
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application for Removal of Land Restrictions
Legal Issues
- 1 Whether the court should order the removal of restrictions, inhibition, and caution registered against the 2nd defendant's parcel of land.
- 2 Whether the application is properly served upon the respondent and supported by sufficient evidence.
- 3 Whether the restrictions were registered pursuant to a court order or have been overtaken by events.
Ratio Decidendi
The court found that the applicant failed to provide sufficient evidence clarifying whether the restrictions were registered pursuant to a court order or if the investigations by the C.I.D. officers had concluded. Additionally, there was no evidence of service of the application upon the substituted respondent, Joseph Gikunda Kirigia. In the absence of these clarifications and proper service, the court could not find merit in the application for removal of the restrictions. The application was therefore dismissed with no order as to costs.
Court Disposition
application dismissed
Orders
- The application for removal of restrictions, inhibition, and caution on L.R. Nkuene/Kathera/726 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 43 OF 2008
CATHERINE NKIROTE ........................................... PLAINTIFF
VERSUS
STEPHEN MARETE ......................................... 1ST DEFENDANT
JOSEPH MURITHI M’MARETE.................... 2ND DEFENDANT
RULING
1. By an application dated 7. 7.2021 the court is asked under Section 70 & 73 of the Land Registration Act and Section 3A of the Civil Procedure Act to issue orders for the removal of inhibition, caution and other restrictions lodged and registered against the 2nd defendant’s Parcel L.R. Nkuene/Kathera/726 and that the Land Registrar Meru Central be ordered to remove the said restrictions.
2. The application is supported by affidavit of Joseph Murithi M’Marete sworn on 7. 7.2021.
3. The grounds of the application are that on 22. 5.2019 this suit was dismissed with costs to the defendants and no appeal has been preferred against the said dismissal.
4. Further it is averred the plaintiff who is now deceased had caused restriction to be registered. Given the suit is finalized, the applicant takes the view the restrictions serve no purpose and hence should be lifted.
5. In support of the application the applicant has attached copies of a certificate of official search and death certificate of the plaintiff who passed on 9. 5.2013.
6. With leave the applicant filed written submissions dated 12. 10. 2021. He submits the restrictions were placed on 27. 3.2006. The court record shows the deceased was substituted by Joseph Gikunda Kirigia vide an application dated 5. 5.2014 who proceeded to participate in the suit up to judgment.
7. After the matter was finalized the applicant took out a notice to show cause as well as warrants of attachment.
8. The court ordered the application be served upon the respondent but unfortunately there is no affidavit of service as to whether the said Joseph Gikunda Kirigia was served with this application.
9. Looking at annexture marked JMM1, there are two restrictions placed on 27. 3.2006 and 14. 9.2010. The first restriction was placed by the C.I.D. officers who apparently appear to have been undertaking some investigations. There is no evidence if those investigations have been finalized.
10. Further there is no evidence that the restrictions were registered on account of a court order arising out of this suit.
11. The supporting affidavit has not clarified the above issues for this court to make a finding as to whether or not the restrictions have been overtaken by events.
12. The court has gone through the court record and it is apparent there were other cases such as Meru High Court Civil Appeal No. 19 of 2016. The applicant in his affidavit in support is silent on the outcome of these previous proceedings.
13. In absence of any clarifications and service upon the rightful respondent, the court is unable to find any merits in this application. The same is dismissed with no order as to cost.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 1ST DAY OF DECEMBER, 2021
In presence of:
No appearance for parties
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE