[2017] KEELC 721 (KLR)
The court determined that although the applicant sought to lift encumbrances on the suit land, the proper forum for canvassing the orders sought is the Chief Magistrate's Court at Chuka. The Environment and Land Court found that it was not the appropriate court to hear the application at this stage, and therefore...
Source-derived case information.
- Citation
- [2017] KEELC 721 (KLR)
- Parties
- Plaintiff: Eliphas Njue; Defendant: Bedford Mugendi Njue
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 17 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application; Transfer of Suit
- Outcome
- Suit transferred to the Chuka Chief Magistrate's Court for hearing and determination.
- Judges
- FM Njoroge
- Legal Topics
- Land Title Encumbrances, Removal of Caution, Jurisdiction and Transfer, Inhibitory Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliphas Njue
Plaintiff
Bedford Mugendi Njue
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application; Transfer of Suit
Legal Issues
- 1 Whether the court should lift all encumbrances on land parcel LR: MWIMBI/MURUGI/721.
- 2 Whether the application should be heard and determined by the Environment and Land Court or the Chief Magistrate's Court at Chuka.
- 3 Whether the respondent's caution and inhibitory orders over the suit land are lawful.
Ratio Decidendi
The court determined that although the applicant sought to lift encumbrances on the suit land, the proper forum for canvassing the orders sought is the Chief Magistrate's Court at Chuka. The Environment and Land Court found that it was not the appropriate court to hear the application at this stage, and therefore ordered the transfer of the suit to the lower court for hearing and determination. The court did not make a substantive determination on the merits of the application regarding the lifting of the encumbrances, but focused solely on the issue of jurisdiction and proper forum.
Court Disposition
Suit transferred to the Chuka Chief Magistrate's Court for hearing and determination.
Orders
- This suit is transferred to the Chuka CM’s Court for hearing and determination.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC MISCELLANEOUS CIVIL CASE NO 17 OF 2017
FORMERLY CHUKA CM’S COURT MISC CIVIL CASE NO. 7/2016
ELIPHAS NJUE……………………………………………..PLAINTIFF
VERSUS
BEDFORD MUGENDI NJUE………………………………DEFENDANT
RULING
1. This application which is dated 30. 5.2016 seeks the following orders:
1. That this honourable court be pleased to lift all the encumbrances on land parcel LR: MWIMBI/MURUGI/721.
2. That the land registrar Meru-South be served with the orders herewith for compliance.
3. That cost of this application be provided for.
2. The application has the following grounds:
a. That the applicant is the registered owner of Land LR: Mwimbi/Murugi/721.
b. That on or around the year 1990 the respondent obtained an inhibitory order against the suit parcel prohibiting any dealings vide Meru High Court Civil Suit No. 1 of 1990 until the said suit was determined.
c. That the respondent failed and/or refused to pursue the case and the same was dismissed for want of prosecution.
d. That after dismissal of the suit, the applicant went to court to have the inhibitions lifted but the said file could not be traced and up todate the said file is still missing.
e. That after dismissal of the suit on 24th November, 2010 the respondent lodged a caution against the suit parcel.
f. That the respondent has never sued the applicant in any court to claim his interests over land parcel LR:MWIMBI/MURUGI/721 consequently the said caution is illegal.
g. That by reason of the foregoing the honourable court should be pleased to lift al the encumbrances on land parcel LR:MWIMBI/MURUGI/721.
h. That an encumbrance cannot be lodged forever but for a stipulated period of time.
i. That land registrar Meru-South should be served with the orders herewith for compliance.
j. That the applicant will suffer irreparably if the orders sought are not granted.
3. I find that the orders sought in the application can be canvassed in the CM’s Court at Chuka. It is ordered as follows:
This suit is transferred to the Chuka CM’s Court for hearing and determination.
Delivered in open court at Chuka this 6th day of December, 2017 in the presence of:
CA: Ndegwa
Parties absent
P.M. NJOROGE
JUDGE