[2019] KEELC 2934 (KLR)
The court found that the caution registered against the suit property was based on an order made in the case, but there was no opposition to its removal from any party. The applicant demonstrated that the caution was a misrepresentation of the orders granted, and all parties, including the plaintiff and the 3rd...
Source-derived case information.
- Citation
- [2019] KEELC 2934 (KLR)
- Parties
- Plaintiff: Elias Kaburu Muriithi; Defendant: Hawkins Mutegi Kamundi; Defendant: Milesmind Limited; Defendant: Consolidated Bank of Kenya Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 210 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Remove Caution
- Outcome
- application granted
- Judges
- DO Ohungo
- Legal Topics
- Removal of Caution, Land Title Register, Consent Orders, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elias Kaburu Muriithi
Plaintiff
Hawkins Mutegi Kamundi
Defendant
Milesmind Limited
Defendant
Consolidated Bank of Kenya Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Remove Caution
Legal Issues
- 1 Whether the caution registered against title number Nakuru Municipality/Block12/229 should be removed from the register.
- 2 Whether the caution was a misrepresentation of the court orders granted.
- 3 Whether the application to remove the caution is opposed by any party.
Ratio Decidendi
The court found that the caution registered against the suit property was based on an order made in the case, but there was no opposition to its removal from any party. The applicant demonstrated that the caution was a misrepresentation of the orders granted, and all parties, including the plaintiff and the 3rd defendant, consented to the removal. The court, after reviewing the record and considering the consents, determined that there was no justification to maintain the caution. Accordingly, the court ordered the removal of the caution from the register, with costs in the cause.
Court Disposition
application granted
Orders
- The caution registered on 22nd November 2012 against title number Nakuru Municipality/Block12/229 is to be removed from the register.
- Costs in the cause.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
CASE NO. 210 OF 2013
ELIAS KABURU MURIITHI..........................................................PLAINTIFF
VERSUS
HAWKINS MUTEGI KAMUNDI.........................................1ST DEFENDANT
MILESMIND LIMITED.......................................................2ND DEFENDANT
CONSOLIDATED BANK OF KENYA LIMITED.............3RD DEFENDANT
RULING
1. This suit was initially filed as HCC No 128 of 2011 (Nakuru) but was later transferred to this court hence its new case number. By Notice of Motion dated 24th May 2018, the 2nd defendant seeks an order that the order registered on 22nd November 2012 as a caution against title number Nakuru Municipality/Block12/229 (the suit property) be removed from the register. The application is supported by an affidavit sworn by Nyaga Mwendwa, a director of the applicant company. He deposed that the applicant is the registered proprietor of the suit property having purchased it from the plaintiff. That the 1st defendant obtained ex parte orders which he used to register a caution against the suit property. He annexed a copy of a Certificate of Search as at 6th March 2017. He added that the caution is a complete misrepresentation of the orders that were granted and that it is unjust to allow the caution in place.
2. On 20th June 2019 when the application came up for inter parte hearing, only the applicant and the 1st defendant were represented in court. Counsel for the 1st defendant indicated that he does not oppose the application. Additionally, counsel for the applicant presented a letter of consent dated 27th May 2019 and executed by counsel for the applicant and counsel for the plaintiff. There is also another letter of consent dated 18th June 2019 executed by counsel for the applicant and counsel for the 3rd defendant. Both consents were filed on 20th June 2019 and to the effect that the plaintiff and the 3rd defendant do not oppose the application. In effect therefore, none of the parties appear to oppose the application. I however reserved a ruling to enable me peruse the old voluminous record herein so as to be certain that the orders sought should issue. In matters concerning land, consents may affect other parties not before the court and it is therefore necessary that prudence be exercised.
3. I have now had occasion to peruse the record. From the material placed before the court, it is apparent that a caution was registered against the suit property on 22nd November 2011 on the strength of an order made in this case. There being no opposition to the application and in view of the consents, the orders sought should issue.
4. In the end, I hereby order that the caution registered on 22nd November 2012 against title number Nakuru Municipality/Block12/229 be removed from the register. Costs in the cause.
Dated, signed and delivered in open court at Nakuru this 24th day of June 2019.
D. O. OHUNGO
JUDGE
In the presence of:
No appearance for the 2nd defendant/applicant
No appearance for the plaintiff/respondent
Ms Sambu holding brief for Mr Kisila for the 1st defendant/respondent
No appearance for the 3rd defendant/respondent
Court Assistants: Beatrice & Lotkomoi