[2018] KEELC 3119 (KLR)
The court held that the application seeking to dispense with the production of the original title was premature because the matter had not proceeded to full trial, pleadings had not closed, and a pretrial conference had not been conducted. The court emphasized that such orders can only be granted after hearing the...
Source-derived case information.
- Citation
- [2018] KEELC 3119 (KLR)
- Parties
- Plaintiff: Geoffrey Muthigani Gichuru; Defendant: Marion Mutundu Gichuru
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 114 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application Prior to Trial
- Outcome
- application dismissed with costs to the respondent
- Judges
- L Waithaka
- Legal Topics
- Land Title Production, Interlocutory Applications, Trusts in Land, Pretrial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Muthigani Gichuru
Plaintiff
Marion Mutundu Gichuru
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application Prior to Trial
Legal Issues
- 1 Whether the court should order the Land Registrar to dispense with production of the original title to land parcel Ruguru/Kiamariga/1392 before trial.
- 2 Whether the application is premature given that pleadings have not closed and the matter has not proceeded to full trial.
Ratio Decidendi
The court held that the application seeking to dispense with the production of the original title was premature because the matter had not proceeded to full trial, pleadings had not closed, and a pretrial conference had not been conducted. The court emphasized that such orders can only be granted after hearing the suit, adducing evidence, and after the court has pronounced itself on the substantive issues. Since none of these procedural steps had occurred, the application lacked merit and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 1st February 2017 is dismissed.
- Costs awarded to the plaintiff/respondent.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
ELC CASE NO. 114 OF 2016
GEOFFREY MUTHIGANI GICHURU..........PLAINTIFF
-VERSUS-
MARION MUTUNDU GICHURU............DEFENDANT
RULING
1. On 7th February 2017, the plaintiff/applicant filed a motion brought under Section 3and3(a) of the Civil Procedure Act and Order 51 of the Civil Procedure Rules seeking among other orders, that this honourable court be pleased to order the Land Registrar Nyeri to dispense with production of the original title to land parcel No. Ruguru/Kiamariga/ 1392.
2. The application is premised on the grounds on the face of the application and is supported by the affidavit of the applicant, Marion Mutunda Gichuru, sworn on 1st February, 2017.
3. The application is opposed vide the replying affidavit sworn by the respondent on 9th May, 2018.
4. This suit was filed on 27th May, 2016. In his plaint, the plaintiff prayed for an order stopping the defendant from subdividing land parcel Rugugu/ Kiamariga/1392 and for the Land Registrar to be prohibited from dealing with the aforesaid parcel. On 30th May 2016, the plaintiff filed an application seeking similar prayers to those sought in the plaint.
5. The aforesaid motion was heard interparties on 9th November, 2016. In a ruling dated 9th November 2016, this court dismissed the application on the other grounds that the applicant had not submitted any proof of the trust he alleged and subdivision of the suit property had already taken place therefore the application had been overtaken by events.
6. The plaintiff has since filed an amended plaint and expanded his prayers to include a declaration that the registration of LR Ruguru/ Kiamariga/1392 and or any other parcel of land resulting from subdivision of the aforesaid parcel is held in trust for him.
7. I wish to point out that this matter has not proceeded for full trial. Pleadings have not closed and a pretrial conference is yet to be conducted. Under the circumstances, I am of the considered view that the instant application is premature as the orders sought can only be granted once hearing of the suit has taken place, evidence adduced, witnesses have testified and the court has pronounced itself.
8. As none of the above has taken place, the application is found to be without merit and is dismissed with costs to the plaintiff/respondent.
Dated, signed and delivered in open court at Nyeri this 24th day of May, 2018.
L N WAITHAKA
JUDGE
Coram:
Mr. Warutere for the defendant/applicant
Geoffrey Muthigani Gichuru – plaintiff/respondent
Court assistant - Esther