[2011] KEHC 2545 (KLR)
The court found that the title document is central to the dispute, with competing claims of ownership, and thus must be securely preserved. The applicant's concerns about potential exposure to litigation and the cost of safekeeping were not persuasive, as compliance with a court order does not expose counsel to...
Source-derived case information.
- Citation
- [2011] KEHC 2545 (KLR)
- Parties
- Plaintiff: Gilgil Distributors Limited; Defendant: Grace Rwamba Njeru; Defendant: Virginia Njeri and Esther Wanja (as administrators of the Estate of the late John Maina Kamangara)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 65 of 2009
- Procedural Posture
- Civil Case / Interlocutory Application for Review or Setting Aside of Preservation Order
- Outcome
- Application dismissed with directions for custody of the title document.
- Legal Topics
- Interlocutory Orders, Preservation of Title Documents, Custody of Evidence, Review of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gilgil Distributors Limited
Plaintiff
Grace Rwamba Njeru
Defendant
Virginia Njeri and Esther Wanja (as administrators of the Estate of the late John Maina Kamangara)
Defendant
Procedural Posture
Civil Case / Interlocutory Application for Review or Setting Aside of Preservation Order
Legal Issues
- 1 Whether the order requiring the plaintiff's advocate to hold the original title document should be reviewed, vacated, discharged, or set aside.
- 2 Whether the continued custody of the title document by the plaintiff's advocate is prejudicial or unduly burdensome.
- 3 Whether the title document should be preserved by the court pending determination of the suit.
Ratio Decidendi
The court found that the title document is central to the dispute, with competing claims of ownership, and thus must be securely preserved. The applicant's concerns about potential exposure to litigation and the cost of safekeeping were not persuasive, as compliance with a court order does not expose counsel to liability. The court held that the plaintiff's advocate does not require physical possession of the title to prepare the list of documents, and the delay in preparing the list was unjustified. To address the advocate's concerns about cost, the court directed that the title document be brought into the custody of the court, to be kept under lock and key and produced as required...
Court Disposition
Application dismissed with directions for custody of the title document.
Orders
- The application to review, vacate, discharge or set aside the order is dismissed.
- The original title document to be brought into the custody of the court to be kept under lock and key and produced as and when required until the matter is heard and determined.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. 65 0F 2009
GILGIL DISTRIBUTORS LIMITED............................................................PLAINTIFF
VERSUS
GRACE RWAMBA NJERU.............................................................1ST PLAINTIFF
VIRGINIA NJERI AND ESTHER WANJA(Sued as the administrators of the Estate of the late
JOHN MAINA KAMANGARA)...............................................................................................2ND DEFENDANT
RULING
On 11th November 2009, Justice Maraga, moving Suo Mottoordered that Mr. Matiri, Counsel for the Plaintiff, do hold the original of grant registered as Number I.R. 69960/1 until this suit is heard and determined or until the further orders of this Court. Mr. Matiri has filed the application dated 30th March 2011, seeking an order that this Court be pleased to review, vacate, discharge or set aside the orders made by Justice Maraga. The reasons for the application are that the documents are urgently required to form part of the plaintiff’s evidence and to prepare a list of documents .He also deponed that the continued holding of the document may draw his firm into an arena of litigation. Lastly, counsel said that it has become increasingly expensive for the plaintiff’s advocate to keep the said documents in safe custody. He had filed an affidavit in support.
The application was opposed by Mr. Kimatta, Counsel for the 1st defendant, who swore an affidavit dated 5th April 2011. Counsel reads mischief in the application by Mr. Matiri. He deponed that before the Judge made the said order, he had put into consideration the issues raised in the suit and therefore the need to preserve the title. He said the plaintiff did not require the physical possession of the title in order to prepare its list of documents and in any event since this matter had been pending since the 2009. The same should have been prepared and filed.
Having considered the above submissions, it is not in dispute that the title document is at the core of this dispute with two parties claiming to have bought the land and therefore the need for title to be securely preserved. I do not understand how Mr Matiri is likely to be drawn into the arena of the dispute, if he is only complying with an Order of this Court, to keep the title in safe custody. This matter has been pending since 2009, and it is not understandable why the list of documents has not been drawn todate. In any event, Counsel does not need the documents in order to file the list. This matter is still pending and it is my view that the title should be kept in safe custody and if Mr Matiri finds it too expensive to keep it, then I direct the same be brought into custody of the Court, to be kept under lock and key and produced as and when required until this matter is heard and determined. It is so ordered.
Cost be in the cause.
DATED AND DELIVERED THIS 20TH DAY OF MAY 2011.
R P V WENDOH
JUDGE
PRESENT
Mr. Matiri Applicant: present
Ms Litunda holding brief for Kimetta
Court Clerk: Kennedy Oguma