[1997] KECA 325 (KLR)
The Court of Appeal found that the High Court failed to consider the applicant's argument that the 2nd respondent held the suit property to defend the applicant's interest, and that the property had been transferred as a gift. The court also noted that the lifting of the applicant's caution on the land by the Land...
Source-derived case information.
- Citation
- [1997] KECA 325 (KLR)
- Parties
- Applicant: Fredrick Wachira Ndegwa (substituted Ndegwa Wachira, deceased); Respondent: Richard Wanjira Ndanjeru; Respondent: Beauttah Kanyoro Muthui
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 3 of 1997
- Procedural Posture
- Civil Application / Application for Injunction Pending Appeal
- Outcome
- Application for injunction granted pending appeal.
- Judges
- AM Akiwumi, AB Shah
- Legal Topics
- Injunction Pending Appeal, Res Judicata, Land Gift Transfer, Caution on Land, Land Registrar Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Wachira Ndegwa (substituted Ndegwa Wachira, deceased)
Applicant
Richard Wanjira Ndanjeru
Respondent
Beauttah Kanyoro Muthui
Respondent
Procedural Posture
Civil Application / Application for Injunction Pending Appeal
Legal Issues
- 1 Whether the High Court erred in failing to consider the applicant's claim that the suit property was given to the 2nd respondent to defend the applicant's interest.
- 2 Whether the matter was res judicata as held by the High Court.
- 3 Whether the lifting of the applicant's caution on the suit land by the Land Registrar was wrongful and material to the application.
Ratio Decidendi
The Court of Appeal found that the High Court failed to consider the applicant's argument that the 2nd respondent held the suit property to defend the applicant's interest, and that the property had been transferred as a gift. The court also noted that the lifting of the applicant's caution on the land by the Land Registrar was a significant issue that was not addressed by the High Court. Given these unconsidered and arguable points, and the risk that the suit land could be transferred to third parties before the appeal is heard, the Court of Appeal determined that the applicant's Notice of Motion for an injunction should be granted. The court emphasized the need to preserve the subject...
Court Disposition
Application for injunction granted pending appeal.
Orders
- The prayers sought in the applicant's Notice of Motion dated 8th January, 1997 are hereby granted.
- Costs to abide the appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: AKIWUMI, TUNOI & SHAH, JJ.A.)
CIVIL APPLICATION NO. NAI. 3 OF 1997 (3/97 UR)
BETWEEN
FREDRICK WACHIRA NDEGWA (substituted NDEGWA WACHIRA (DECEASED) .............. APPLICANT
AND
1. RICHARD WANJIRA NDANJERU
2. BEAUTTAH KANYORO MUTHUI ........................ RESPONDENTS
(Application for an injunction from an Appeal from a Judgment and Decree of the High Court of Kenya at Nyeri (Justice Osiemo) dated 18th November, 1996 in H.C.C.C. NO. 300 OF 1996) ************
RULING OF THE COURT
The applicants' submissions as untained in his affidavit in support of his claims that the 2nd respondent had been given the suit property by the lst respondent in order to defend the applicant's interest in the suit land, was not considered at all by the judge of the superior court when in his somewhat brief ruling dismissing the applicant's application, he held that the matter was res judicata. Since it is not denied that the suit property which had been registered in the name of the 2nd respondent, had been given to her by way of a gift, it would seem that the failure of the judge of the superior court to consider this point, is an arguable point.
This is particularly so when it is remembered that the applicant's caution which he had placed on the suit land, appears to have been wrongly lifted by the Land Registrar. But this was also an important issue which the learned judge completely failed to consider. The way in which the suit land seems to have passed from the lst respondent to the 2nd respondent also fortifies the proposition that the suit land is likely to pass from the 2nd respondent to another. It is in these circumstances set out above that we think that the order that commands itself to us is that the prayers sought in the applicant's Notice of Motion dated 8th January, 1997 are hereby granted costs to abide the appeal.
Dated and delivered at Nairobi this 24th day of January, 1997.
A. M. AKIWUMI
.................
JUDGE OF APPEAL
P. K. TUNOI
..................
JUDGE OF APPEAL
A. B. SHAH
...................
JUDGE OF APPEAL
I certify that this is a true copy of the original
. DEPUTY REGISTRAR.