[2020] KEELC 3217 (KLR)
The court found that the application raised issues regarding the preservation of the suit land pending the hearing of the appeal and the propriety of the ex-parte orders issued by the lower court. However, as the application was not supported by an affidavit and the respondent had not been served, the court declined...
Source-derived case information.
- Citation
- [2020] KEELC 3217 (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 (ruling on Preliminary Orders Pending Appeal)
- Outcome
- Application stood over for inter partes hearing; no substantive orders granted at this stage.
- Legal Topics
- Land Inhibition Orders, Caution Registration, Ex Parte Orders, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gitonga Nyaga Boore
Appellant
Nyaga Boore Kanyoro
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application (ruling on Preliminary Orders Pending Appeal)
Legal Issues
- 1 Whether the applicant is entitled to orders of inhibition against dealings on the suit land pending the appeal.
- 2 Whether the ex-parte orders of the lower court dated 10th July, 2019 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 raised issues regarding the preservation of the suit land pending the hearing of the appeal and the propriety of the ex-parte orders issued by the lower court. However, as the application was not supported by an affidavit and the respondent had not been served, the court declined to grant substantive orders at this stage. Instead, the court directed that the applicant serve the memorandum of appeal and the application on the respondent within 14 days, and set the matter for inter partes hearing. The court emphasized the need for both parties to be heard before any substantive orders could be made affecting the suit land or the parties' interests.
Court Disposition
Application stood over for inter partes hearing; no substantive orders granted at this stage.
Orders
- The applicant to serve the Memorandum of Appeal and accompanying documents and this application upon the respondent within 14 days.
- The application to be heard inter partes on 7th April, 2020 if courts will have resumed normal operations.
Full Case Text
Judgment text and source record
30 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 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