[2023] KEELC 18687 (KLR)
The court determined that Rose Wairimu Ngunjiri, as the cautioner, was not properly joined as a substantive respondent and may not have been adequately served with the application to vacate the caution. The court found that proceeding to judgment without proper joinder and service would violate principles of natural...
Source-derived case information.
- Citation
- [2023] KEELC 18687 (KLR)
- Parties
- Applicant: Daniel Gikonyo Gathirimu; Applicant: Peter Mwaura Gathirimu; Respondent: The County Land Registrar, Kiambu; Interested Party: Rose Wairimu Ngunjiri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Judicial Review 5 of 2022
- Procedural Posture
- Judicial Review / Interlocutory Order
- Outcome
- Application stood over for proper joinder and service; judgment date vacated.
- Judges
- BM Eboso
- Legal Topics
- Caution Removal, Joinder of Parties, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Gikonyo Gathirimu
Applicant
Peter Mwaura Gathirimu
Applicant
The County Land Registrar, Kiambu
Respondent
Rose Wairimu Ngunjiri
Interested Party
Procedural Posture
Judicial Review / Interlocutory Order
Legal Issues
- 1 Whether the cautioner was properly served with the application to vacate the caution.
- 2 Whether the interested party should be joined as a substantive respondent.
- 3 Whether the court should proceed to judgment without proper joinder and service.
Ratio Decidendi
The court determined that Rose Wairimu Ngunjiri, as the cautioner, was not properly joined as a substantive respondent and may not have been adequately served with the application to vacate the caution. The court found that proceeding to judgment without proper joinder and service would violate principles of natural justice and due process. Accordingly, the court ordered amendment of the motion to join the cautioner as a substantive respondent and directed service by publication in a national newspaper to ensure the cautioner is properly notified and given an opportunity to respond.
Court Disposition
Application stood over for proper joinder and service; judgment date vacated.
Orders
- The notice of motion dated 14/7/2022 shall be amended forthwith to designate Rose Wairimu Ngunjiri as a substantive respondent.
- The motion shall be served on Rose Wairimu Ngunjiri through a prominent notice in either the Daily Nation Newspaper or the Standard Newspaper.
Full Case Text
Judgment text and source record
24 paragraphs
Gathirimu & another v County Land Registrar, Kiambu; Ngunjiri (Interested Party) (Judicial Review 5 of 2022) [2023] KEELC 18687 (KLR) (10 July 2023) (Order)
Neutral citation: [2023] KEELC 18687 (KLR)
Republic of Kenya
In the Environment and Land Court at Thika
Judicial Review 5 of 2022
BM Eboso, J
July 10, 2023
Between
Daniel Gikonyo Gathirimu
1st Applicant
Peter Mwaura Gathirimu
2nd Applicant
and
The County Land Registrar, Kiambu
Respondent
and
Rose Wairimu Ngunjiri
Interested Party
Order
1. Through a notice of motion dated 14/7/2022, the applicants sought an order vacating a caution registered in the encumbrances section of the land register relating to land parcel number Dagoretti/Uthiru/553. Pre-trial proceedings were conducted by the Deputy Registrar. The only time the motion was listed before a judge of this court was on 15/5/2023. On that particular day, counsel for the applicants informed the court that the motion had been canvassed through written submissions and invited the court to render a determination on it. Counsel for the respondent indicated that she would rely on the grounds of opposition and would not be filing written submissions.
2. Based on the foregoing, the court reserved a date for judgment in this matter. While preparing to write the judgment, the court has perused the pleadings and the affidavits of service which informed the pre-trial proceedings before the Deputy Registrar. It does emerge that the interested party is alleged to have been served through email address: rosengunjiriw@gmail.com. It is not clear where the applicants got this email address from.
3. It does also appear that although Rose Wairimu Njunjiri was designated as a mere interested party, she is the cautioner and she ought to have been joined as a substantive respondent. She is the person who should be invited to step forward and show cause why the caution should not be vacated.
4. It is therefore clear that the cautioner may not be aware of this suit. Secondly, there is need to join the cautioner as a substantive respondent. Consequently I make the following orders:a.The notice of motion dated 14/7/2022 shall be amended forthwith to designate Rose Wairimu Ngunjiri as a substantive respondent.b.The motion shall be served on Rose Wairimu Ngunjiri through a prominent notice in either the Daily Nation Newspaper or the Standard Newspaper.c.The order reserving a date for judgment in this suit is hereby vacated.
DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA ON THIS 10TH DAY OF JULY 2023B M EBOSOJUDGEIn the Presence of: -Mr Owino for the Exparte ApplicantCourt Assistant: Hinga