[2020] KEELC 3131 (KLR)
The court found that the application, though lacking a supporting affidavit, raised issues regarding the risk of alienation of the suit land and the propriety of ex-parte orders previously issued by the lower court. However, the court declined to grant substantive ex-parte relief at this stage, instead directing...
Source-derived case information.
- Citation
- [2020] KEELC 3131 (KLR)
- Parties
- Appellant: Gitonga Nyaga Boore; Respondent: Nyaga Boore Kanyoro
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 12 of 2019
- Procedural Posture
- Civil Appeal / Interlocutory Application; Directions for Service and Inter Partes Hearing
- Outcome
- Directions issued for service and inter partes hearing; no substantive orders granted at this stage.
- Legal Topics
- Land Inhibition Orders, Ex Parte Orders, Service of Process, Caution on Land, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gitonga Nyaga Boore
Appellant
Nyaga Boore Kanyoro
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application; Directions for Service and Inter Partes Hearing
Legal Issues
- 1 Whether the applicant is entitled to orders of inhibition over LR Mwimbi South Mugumango 34 pending determination of the intended suit.
- 2 Whether the ex-parte orders of 10th July, 2019 issued by the lower court should be vacated and the caution reinstated.
- 3 Whether the application should be heard ex-parte or inter partes.
Ratio Decidendi
The court found that the application, though lacking a supporting affidavit, raised issues regarding the risk of alienation of the suit land and the propriety of ex-parte orders previously issued by the lower court. However, the court declined to grant substantive ex-parte relief at this stage, instead directing that the application and all relevant documents be served upon the respondent within 14 days. The court emphasized the need for inter partes hearing to ensure fairness and compliance with procedural requirements, particularly given the absence of the respondent and the lack of supporting affidavit. The matter was set down for inter partes hearing on a future date, subject to the...
Court Disposition
Directions issued for service and inter partes hearing; no substantive orders granted at this stage.
Orders
- The applicant to serve the Memorandum of Appeal, all accompanying documents, and the court's ruling upon the respondent within 14 days.
- The application to be heard inter partes on 7th May, 2020 if courts are operational.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CIVIL APPEL CASE NO. 12 OF 2019
GITONGA NYAGA BOORE....................................APPELLANT/APPLICANT
VERSUS
NYAGA BOORE KANYORO.........................................................RESPONDENT
RULING
1. This court delivered the following ruling on 19th March, 2020.
RULING
1. This application states that it has been brought to court under section 128(1) of the Registered Land Act (sic), Section 3A of the Civil Procedure Act, Order 1 Rule 17 of the Civil Procedure Rules and all other enabling provisions of the law.
2. The application seeks the following orders:
1. That due to the nature and agency (sic), the instant application be heard ex-parte saves (sic) for inter parte hearing.
2. That the orders of inhibition inhibiting all dealings in respect of LR Mwimbi South Mugumango 34 do issue pending the hearing and final determination of the intended substantive suit by the applicant and others having licensee interest on the suit land.
3. That the lower court orders of 10th July, 2019 Chuka Chief Magistrate issued ex-parte be vacated and the caution which was registered on the suit land be reinstated.
4. That the respondent be condemned to pay cost for and incidental to the instant suit.
3. The application has the following grounds:
a. That the order dated 10th July, 2019 in the lower court was granted ex-parte contrary to law.
b. That the suit land in which the applicant cautioned is highly susceptible to be disposed of to the third party to defect (sic) the outcome of the intended suit by the applicant.
c. That the interest of the applicant in the suit land is highly jeopardized due to court orders of10. 7.2019.
d. That the applicants (sic) stand to suffer irreparable loss and damage if the orders sought in the instant application is (sic) not granted.
4. The application has no supporting affidavit.
5. A certificate of urgency dated 16th December, 2019 indicates that the applicant had filed an application dated 16th December, 2019. That application is not in the court file.
6. After perusing the application and all attendant filings, it is ordered as follows:-
a) The applicant to serve the Memorandum of Appeal and accompanying documents AND this application upon the respondent within 14 days of today.
b) This application will be heard interpartes on 7th April, 2020if courts will have resumed normal operations.
Delivered in chambers this 19th day of March, 2020 in the presence of:
CC: Ann
Parties not present
P. M. NJOROGE,
JUDGE
2. When the matter was slated for interpartes hearing on 7th April, 2020, the parties were not in court.
3. In the circumstances, the following orders are issued:
a) The applicant to serve the Memorandum of Appeal, all accompanying documents and this court’s Ruling delivered on 19th March, 2020 upon the respondent within 14 days of today.
b) The application will be heard interpartes on 7th May, 2020 if the courts will be operating, and this decision has been informed by the existing corona virus crisis.
Delivered in open Court at Chuka this 7th day of April, 2020
in the presence of:
CA: Ndegwa
Parties absent
P. M. NJOROGE,
JUDGE.