[2023] KEELC 15774 (KLR)
The court found that the applicant, as chargee, was entitled to the removal of the caution and restriction because the interested party, as registered proprietor, had defaulted on the loan and failed to redeem the property. The cautioner, Catherine Wambui Duncan, did not respond or prove any lawful claim to the suit...
Source-derived case information.
- Citation
- [2023] KEELC 15774 (KLR)
- Parties
- Applicant: Family Bank Limited; Respondent: Land Registrar, Kajiado North; Interested Party: Erick Kinuthia Wakaba; Plaintiff: Catherine Wambui Duncan; Plaintiff: Mike Wakaba Kinuthia; Plaintiff: Monica Wanjiku Kinuthia; Defendant: TA Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 12 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Removal of Caution and Restriction
- Outcome
- application allowed
- Judges
- MN Gicheru
- Legal Topics
- Removal of Caution, Statutory Power of Sale, Land Charge Enforcement, Loan Default, Registration of Restrictions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Family Bank Limited
Applicant
Land Registrar, Kajiado North
Respondent
Erick Kinuthia Wakaba
Interested Party
Catherine Wambui Duncan
Plaintiff
Mike Wakaba Kinuthia
Plaintiff
Monica Wanjiku Kinuthia
Plaintiff
TA Auctioneers
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Removal of Caution and Restriction
Legal Issues
- 1 Whether the caution lodged by Catherine Wambui Duncan over the suit land should be removed.
- 2 Whether the restriction registered by DCIO Central Nairobi against the suit land should be lifted.
- 3 Whether the applicant is entitled to exercise its statutory power of sale over the suit land.
Ratio Decidendi
The court found that the applicant, as chargee, was entitled to the removal of the caution and restriction because the interested party, as registered proprietor, had defaulted on the loan and failed to redeem the property. The cautioner, Catherine Wambui Duncan, did not respond or prove any lawful claim to the suit land. The respondent, despite being represented, did not justify the continued existence of the caution or restriction. The application was unopposed and the applicant had complied with statutory requirements. Therefore, the court ordered the removal of the caution and restriction to allow the applicant to exercise its statutory power of sale.
Court Disposition
application allowed
Orders
- The caution lodged over Title No Ngong/Ngong/59915 by Catherine Wambui Duncan is to be removed.
- The restriction registered against the suit land by DCIO Central Nairobi is to be lifted.
Full Case Text
Judgment text and source record
36 paragraphs
Family Bank Limited & 3 others v Land Registrar, Kajiado North & 2 others; Wakaba (Interested Party) (Environment and Land Miscellaneous Application 12 of 2021 & Environment & Land Case E026 of 2021 (Consolidated)) [2023] KEELC 15774 (KLR) (27 February 2023) (Ruling)
Neutral citation: [2023] KEELC 15774 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Environment and Land Miscellaneous Application 12 of 2021 & Environment & Land Case E026 of 2021 (Consolidated)
MN Gicheru, J
February 27, 2023
Between
Family Bank Limited
Applicant
and
Land Registrar, Kajiado North
Respondent
and
Erick Kinuthia Wakaba
Interested Party
As consolidated with
Environment & Land Case E026 of 2021
Between
Catherine Wambui Duncan
1st Plaintiff
Mike Wakaba Kinuthia
2nd Plaintiff
Monica Wanjiku Kinuthia
3rd Plaintiff
and
Family Bank Limited
1st Defendant
TA Auctioneers
2nd Defendant
Ruling
1. This ruling is on the notice of motion dated 25/2/2021. It is under section 73(1) of the Land Registration Act, order 51, rule 1, Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act, article 159 of the Constitution of Kenya and all other enabling provisions of law. It seeks the following orders.(i)That the caution lodged over Title No Ngong/Ngong/59915 (suit land) by Catherine Wambui Duncan on October 19, 2016 be removed.(ii)That the restriction registered against the suit land by DCIO Central Nairobi be lifted.(iii)That the orders issued herein be served upon the Land Registrar, Kajiado for compliance.(iv)That costs of this application be provided.
2. The motion is supported by seven grounds, a twenty five paragraph affidavit and five annexures.The gist of all the above material is that the interested party is the registered owner of the suit land. In 2014, the interested party approached the applicant for a loan facility of Kshs 10 million. The loan was advanced and the suit land charged on 31/7/2014. The interested party defaulted on the loan monthly payments and fell into arrears.The applicant issued the requisite statutory notices to the interested party. The interested party filed ELC Case No 562 and 566 of 2017 seeking to stop the sale of the suit land. The application by the interested party was dismissed on 27/4/2017. The suits were also dismissed on 8/10/2018. The applicant has found a caution registered by one Catherine Wambui Duncan and a restriction by the DCIO Central Nairobi.Now that the applicant wishes to exercise its statutory power of sale it needs to have the caution and the restriction removed.
3. The application is unopposed because I have not seen any replying affidavit or grounds of opposition on record.
4. I have carefully considered the application in its entirety including the motion, the grounds and the annexures and I find that it has merit for the following reasons.Firstly, the suit land is in the name of the interested party who has not serviced the loan advanced to him by the applicant as a result of which he is in arrears. He has done nothing at all to redeem the suit land.Secondly, Catherine Wambui Duncan has not proved that she has any lawful claim to the suit land because she has not replied to the application in any way.Finally, the respondent though represented in this case has not explained why the caution by Catherine Wambui Duncan and the DCIO Nairobi Central should not be withdrawn or lifted.For the above stated reasons, I order the caution and the restriction be removed as prayed.It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 27TH DAY OF FEBRUARY, 2023. M.N. GICHERUJUDGE