[2021] KEELC 226 (KLR)
The Environment and Land Court lacks jurisdiction to lift a caution or inhibition registered pursuant to an order issued in a succession cause by a family court. The applicant failed to demonstrate that the event contemplated by the inhibition order had occurred or that the succession cause had been determined. The...
Source-derived case information.
- Citation
- [2021] KEELC 226 (KLR)
- Parties
- Appellant: Eliphas Mbae Arithi; Respondent: Angela Gatumi Mucheke
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 35 of 2015
- Procedural Posture
- Elc Appeal / Ruling on Application to Lift Caution/inhibition
- Outcome
- application struck out
- Legal Topics
- Caution Registration, Inhibition Orders, Land Registration Act, Succession Cause Interplay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliphas Mbae Arithi
Appellant
Angela Gatumi Mucheke
Respondent
Procedural Posture
Elc Appeal / Ruling on Application to Lift Caution/inhibition
Legal Issues
- 1 Whether the Environment and Land Court has jurisdiction to lift a caution or inhibition registered pursuant to orders from a succession cause.
- 2 Whether the caution or inhibition registered over L.R No. Nkuene/Mitunguu/861 should be lifted following the determination of the lower court suit and appeal.
- 3 Whether the applicant has established that the event contemplated by the inhibition order has occurred.
Ratio Decidendi
The Environment and Land Court lacks jurisdiction to lift a caution or inhibition registered pursuant to an order issued in a succession cause by a family court. The applicant failed to demonstrate that the event contemplated by the inhibition order had occurred or that the succession cause had been determined. The court found that granting the orders sought would amount to judicial overreach, as the inhibition was not issued by this court but by a family/succession court. Consequently, the application to lift the caution or inhibition was struck out.
Court Disposition
application struck out
Orders
- The application to lift the caution or inhibition is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONEMENT AND LAND COURT AT MERU
ELC APPEAL NO. 35 OF 2015
ELIPHAS MBAE ARITHI............................................APPELLANT
VERSUS
ANGELA GATUMI MUCHEKE.............................RESPODNENT
RULING
1. The applicant seeks the caution and or inhibition registered on 11. 3.2014 over L.R No. Nkuene/Mitunguu/861 be lifted for the reasons that the lower court Suit No. Nkubu CC No. 74 of 2013 was determined and a decree/judgment issued on 1. 7.2015 and the subsequent appeal finalized on 24. 1.2018.
2. The applicant has attached a copy of a search certificate dated 6. 7.2021. He states there is need to vacate the caution so that he implements the decree.
3. What is however apparent is that one Eliphas Albert Arithi is the one who placed the caution or inhibition until the hearing and determination of Succession Cause No. 277 of 2008 vide an order issued on 6. 5.2019.
4. In this file, I have not seen an order issued by this court for a caution to be registered. It has not been stated if the cautioner is one and the same person and if so whether the succession cause has now been heard and determined.
5. Under Section 73 (1)of Land Registration Act 2012, the court has powers to lift an inhibition order once it has served its purpose and on the happening of the event contempted by the order.
6. This being an ELC, its mandate is limited under Article 162 (2) (b)of theConstitution.The order for inhibition was issued in Succession Cause No. 277 of 2008. It would amount to judicial overreach for me to issue orders given by a family/succession court. I decline to issue the orders sought.
7. In the premises the application is struck out with no order as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 20TH DAY OF DECEMBER, 2021
In presence of:
Wambua for appellant
Mbubuya for respondent
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE