[2021] KEELC 883 (KLR)
The court found that the inhibition order was originally sought and registered by the applicant in a previous suit, which was subsequently withdrawn. The current suit was filed and determined in favour of the applicant, and there was no opposition from the defendant to the application for lifting the inhibition. The...
Source-derived case information.
- Citation
- [2021] KEELC 883 (KLR)
- Parties
- Plaintiff: Elizabeth Karimi Chabari; Defendant: Stella Cyprian Mwenda
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 146 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Lift Inhibition Order
- Outcome
- application allowed
- Legal Topics
- Removal of Inhibition, Land Registration, Court Discretion, Withdrawal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Karimi Chabari
Plaintiff
Stella Cyprian Mwenda
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Lift Inhibition Order
Legal Issues
- 1 Whether the inhibition order on Parcel No. L.R Igoji/Kianjogu/66 should be lifted following withdrawal of the previous suit and judgment in favour of the applicant.
- 2 Whether the court should exercise its discretion under Section 78(2) of the Land Registration Act to remove the inhibition.
Ratio Decidendi
The court found that the inhibition order was originally sought and registered by the applicant in a previous suit, which was subsequently withdrawn. The current suit was filed and determined in favour of the applicant, and there was no opposition from the defendant to the application for lifting the inhibition. The court was satisfied that the purpose of the inhibition had been served and, exercising its discretion under Section 78(2) of the Land Registration Act, allowed the application to lift the inhibition order on the subject parcel. The court also noted the absence of any evidence to the contrary or any objection from the respondent.
Court Disposition
application allowed
Orders
- The inhibition order regarding Parcel No. L.R Igoji/Kianjogu/66 is hereby lifted.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 146 OF 2011
ELIZABETH KARIMI CHABARI ................. PLAINTIFF
VERSUS
STELLA CYPRIAN MWENDA ...................... DEFENDANT
RULING
1. By an application dated 18. 11. 2019 the applicant seeks lifting of an inhibition order regarding Parcel No. L.R Igoji/Kianjogu/66 issued in Meru CMCC No. 168 of 1997.
2. The ground upon which the application is made is that the applicant later withdrew the CMCC suit and subsequently filed this suit which was determined on 14. 6.2018 in her favour.
3. The application is supported by an affidavit sworn on 20. 11. 2019 by Elizabeth Karimi Chabari in which she has attached a copy of the recent green card, the order, judgment and decree as annextures EKC 1 (a) 1(b) and EKC 2 (a) & 2 (b) respectively.
4. Section 78 (2) of the Land Registration Act grants a court powers to order removal, variation or issue other orders if it deems fit upon an application by a proprietor affected by a restriction and with notice to the Land Registrar. This is a discretion which must be exercised judiciously.
5. There is no dispute, inhibition orders were given in CMCC No. 167 of 1998as per the attached copy of the green card. The court has been told the aforesaid suit was withdrawn and the instant one filed whose judgment was in favour of the applicant. In other words it is the applicant who sought, obtained and registered the inhibition order. The said order was to subsist till the suit was disposed of one way or the other.
6. Though the court has not been shown the notice of withdrawal of the previous suit, given a copy of the judgment attached in this file and there being no opposition to the orders sought from the defendant, I find the application with merit. The same is allowed with no order as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 17TH DAY OF NOVEMBER, 2021
In presence of:
Mis Mbogo for plaintiff/applicant
Odari for defendant/respondent
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE