[2021] KEHC 7059 (KLR)
The court found that the inhibition and caution were placed to preserve the suit properties pending the hearing and determination of the suit. Since the suit was dismissed for non-prosecution and all interim orders were discharged, there is no legal basis for the continued existence of the inhibition and caution....
Source-derived case information.
- Citation
- [2021] KEHC 7059 (KLR)
- Parties
- Plaintiff: Celina Karea; Defendant: Aloise Muriati Thiringi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2 of 2018
- Procedural Posture
- Civil Suit / Ruling on Post Dismissal Application to Lift Inhibition and Cancel Caution
- Outcome
- Application allowed. Inhibition and caution orders lifted and cancelled. Costs awarded to applicant.
- Judges
- EM Muriithi
- Legal Topics
- Inhibition Orders, Caution Removal, Dismissal for Non Prosecution, Land Title Preservation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Celina Karea
Plaintiff
Aloise Muriati Thiringi
Defendant
Procedural Posture
Civil Suit / Ruling on Post Dismissal Application to Lift Inhibition and Cancel Caution
Legal Issues
- 1 Whether the orders of inhibition and cautions over the suit properties should be lifted and cancelled following dismissal of the suit.
- 2 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court found that the inhibition and caution were placed to preserve the suit properties pending the hearing and determination of the suit. Since the suit was dismissed for non-prosecution and all interim orders were discharged, there is no legal basis for the continued existence of the inhibition and caution. The respondent did not oppose the application or provide any justification for maintaining the entries. Therefore, the court allowed the application, ordering the lifting and cancellation of the inhibition and caution on the relevant land parcels, and awarded costs to the applicant.
Court Disposition
Application allowed. Inhibition and caution orders lifted and cancelled. Costs awarded to applicant.
Orders
- The orders of inhibition and cautions in the register of land parcels NTIMA/IGOKI/1022 and PLOT NO. 4B MARIMANTI MARKET are lifted and cancelled forthwith.
- The applicant shall have the costs of this application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL SUIT NO. 2 OF 2018
CELINA KAREA ........................................... PLAINTIFF
VERSUS
ALOISE MURIATI THIRINGI .................. DEFENDANT
RULING
[1] Before the court is a Notice of Motion brought pursuant to Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya seeking the following orders:
a. That the orders of inhibition over parcel of land No. NTIMA/IGOKI/1022 and PLOT NO. 4B MARIMANTI MARKET given on 14/7/2011 and issued on 19/7/2011 be lifted and that the inhibitions be cancelled.
b. That any cautions placed by the plaintiff/respondent over parcel of land No. NTIMA/IGOKI/1022 and Plot No. 4B MARIMANTI MARKET be cancelled.
c. That costs be provided for.
[2] The application was based on the grounds on the face of it and on the supporting affidavit of Aloise Muriati Thiringi who averred that on 14/2/2019 the suit herein was dismissed and there is therefore nothing pending for determination. The Land registrar has however refused to remove the orders of inhibition even though the interim orders in force were discharged. Additionally, the plaintiff had lodged a caution over Parcel No. NTIMA/IGOKI/1022 prior to the inhibition orders and there is no justifiable reason why the said caution should not be cancelled from the register.
[3] There was no Grounds of Opposition filed to the Motion and Counsel for the Plaintiff did not attend court on 16th November 2020, the hearing date of which was taken before the court on 29/9/20 in the presence o f counsel for both parties in terms as follows:
“30/9/20
Mr. Kimathi E for the Defendant / Applicant
Mr. Mutuma, G. for the Plaintiff
Court
Let the Respondent file and serve a Replying Affidavit if any within 14 days. Hearing of the application be heard on 16/11/2020.
The applicant has leave to file a Response within 7 days of service, if any.
A. Mabeya, J.
29/9/2020. ”
[4] It is clear that the order of inhibition was made so as to preserve the title of the suit properties pending hearing of the suit. I have confirmed that the present suit was dismissed by the Court by its order of 14/2/2019 (per Mabeya, J.) as follows:
“In the absence of either the Plaintiff or his counsel and in the absence of reasons under Order 12 Rule 3 of the Civil Procedure Rules, the suit is hereby dismissed with costs for non prosecution. Any Interim Orders in force are hereby discharged.”
Orders
[5] Accordingly, for the reasons set out above, the court allows this application and, consequently, order that the orders of inhibition and cautions in the register of the land parcels NTIMA/IGOKI/1022 and PLOT NO. 4B MARIMANTI MARKET be lifted and cancelled forthwith.
[6] The applicant shall have the costs of this application.
Order accordingly.
DATED AND DELIVERED THIS 28TH DAY OF JANUARY 2021.
EDWARD M. MURIITHI
JUDGE
Appearances:
Mr. Kimaita, Advocate for the Applicant.