[2017] KEELC 1776 (KLR)
The court found that the plaintiff, as the registered owner of the suit land, was entitled to seek removal of the caution placed by the defendants, who are his immediate family members. The caution was placed without sufficient justification and was preventing the plaintiff from selling a portion of the land to pay...
Source-derived case information.
- Citation
- [2017] KEELC 1776 (KLR)
- Parties
- Plaintiff: Eliphas Mbae M'raiji; Defendant: Caroline Wanja Mbae; Defendant: Moris Kimathi Mbae; Defendant: Ian Kaburu Mbae
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 260 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application allowed as prayed (prayer 2); no order as to costs.
- Judges
- FM Njoroge
- Legal Topics
- Caution Removal, Sale of Land, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliphas Mbae M'raiji
Plaintiff
Caroline Wanja Mbae
Defendant
Moris Kimathi Mbae
Defendant
Ian Kaburu Mbae
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the caution placed over parcel No. MWIMBI/MURUGI/5219 should be vacated to allow the plaintiff to sell ½ acre for payment of school fees.
- 2 Whether the sale of part of the land would prejudice the defendants.
Ratio Decidendi
The court found that the plaintiff, as the registered owner of the suit land, was entitled to seek removal of the caution placed by the defendants, who are his immediate family members. The caution was placed without sufficient justification and was preventing the plaintiff from selling a portion of the land to pay for his daughter's university fees. The defendants, despite being properly served, did not oppose the application or appear in court. The court exercised its discretion to allow the application as prayed, specifically permitting the sale of ½ acre for the stated purpose, and declined to award costs due to the familial relationship between the parties.
Court Disposition
Application allowed as prayed (prayer 2); no order as to costs.
Orders
- The caution placed over parcel No. MWIMBI/MURUGI/5219 on 23.2.2017 is vacated.
- The plaintiff is allowed to sell only ½ (half) acre out of the six acres to pay school fees for Winjoy Mukami.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO 260 OF 2017
ELIPHAS MBAE M’RAIJI....................................................PLAINTIFF
VERSUS
CAROLINE WANJA MBAE...............................................DEFENDANT
MORIS KIMATHI MBAE.............................................2ND DEFENDANT
IAN KABURU MBAE....................................................3RD DEFENDANT
RULING
1. This application is dated 20th July, 2017 and seeks orders:
1. That this application be certified as urgent and be heard on exparte in the first instance.
2. That the Hon. Court be pleased to vacate the caution placed over parcel No. MWIMBI/MURUGI/5219 on 23. 2.2017 and allow the plaintiff/respondent to sell only ½ (half) acre out of the six acres to be able to pay school fee for WINJOY MUKAMI who is out of college for lack of school fees.
3. That cost of this application be in the cause.
2. The application is supported by the affidavit of ELIPHAS MBAE M’RAIJI, the applicant and has the following grounds:
1. That he is the registered owner of the suit land.
2. That the 1st defendant is the wife while the 2nd and 3rd defendants are his sons.
3. That on the 23. 2.2017 the defendants cautioned the parcel herein with no apparent reasons only insisting that the 2nd and 3rd defendant should go to school and not the daughter who qualified for university by name WINJOY MUKAMI.
4. The daughter herein is currently out of school for lack of fees.
5. That this application will not prejudice the defendants because it is the said WINJOY’S SHARE which will be sold and the rest of the family parcel remain intact.
3. The application was slated to be heard interpartes on 25th September, 2017. There is evidence that the defendants were properly served with the application and with the apposite hearing date. They did not come to court.
4. Miss Ondari for the applicant asked the court to allow the application because it was not opposed.
5. The application, which is not opposed, is allowed in terms of prayer 2.
6. I note that the plaintiff is the husband of the 1st defendant and the father of the 2nd and 3rd defendants. The parties being relatives, 1 exercise my discretion and decline to award costs.
7. Consequently, no costs are award.
8. It is so ordered.
Delivered in open court at Chuka this 25th day of September, 2017 in the presence of:
CA: Ndegwa
Miss Ondari for the Applicant
P.M. NJOROGE
JUDGE