[2024] KEELC 5550 (KLR)
The application to lift and withdraw the prohibition order fails because the applicant did not provide sufficient evidence to establish that the underlying civil suit file was destroyed or that the prohibition order is time-barred. There is no confirmation from the Deputy Registrar regarding the destruction of the...
Source-derived case information.
- Citation
- [2024] KEELC 5550 (KLR)
- Parties
- Applicant: Kennedy Gichunge Gituma; Respondent: Land Registrar Meru Central; Respondent: Hon Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E023 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application dismissed
- Judges
- CK Nzili
- Legal Topics
- Prohibition Orders, Land Registration, Limitation of Actions, Succession, Removal of Encumbrances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Gichunge Gituma
Applicant
Land Registrar Meru Central
Respondent
Hon Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the court should lift and withdraw a prohibition order registered over L.R No. Abothuguchi/Gaitu/363 in 1979.
- 2 Whether the prohibition order is time-barred under Section 4(4) of the Limitation of Actions Act.
- 3 Whether sufficient evidence exists to confirm the destruction of the relevant court file and the status of the underlying civil suit.
Ratio Decidendi
The application to lift and withdraw the prohibition order fails because the applicant did not provide sufficient evidence to establish that the underlying civil suit file was destroyed or that the prohibition order is time-barred. There is no confirmation from the Deputy Registrar regarding the destruction of the file, nor is there a copy of the court register showing the outcome of the case. Without such evidence, the court cannot determine whether a decree or judgment exists or whether the 12-year limitation period has lapsed. Additionally, the Land Registrar has not issued the required notice to the cautioner, and the applicant has not demonstrated that the restriction was improperly...
Court Disposition
application dismissed
Orders
- The application is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
Gituma v Land Registrar Meru Central & another (Miscellaneous Application E023 of 2024) [2024] KEELC 5550 (KLR) (17 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5550 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Miscellaneous Application E023 of 2024
CK Nzili, J
July 17, 2024
Between
Kennedy Gichunge Gituma
Applicant
and
Land Registrar Meru Central
1st Respondent
Hon Attorney General
2nd Respondent
Ruling
1. The court is asked to lift and withdraw a prohibition order registered on 23. 10. 1979 over L.R No. Abothuguchi/Gaitu/363 in respect to Civil Suit No. 289 of 1979. The reasons are that the applicant, who is the administrator of the estate of his late father, Colenetio Gituma, discovered an encumbrance by an unknown person to the family. As a result, the grant issued in Githongo SPM Succession Cause No. 170 of 2023 cannot be implemented. He seeks the court to declare the prohibition time-barred by virtue of Section 4 (4) of the Limitation of Actions Act.
2. Further, the applicant says his late father passed on on 25. 11. 2005 and the file was destroyed vide gazette number 949 of 1. 2.2019. He attached the grant, official search, death certificate and a gazette notice as annexures marked KGG “1” – 4” respectively.
3. This court has jurisdiction to lift any orders of inhibition or restriction under Section 68 of the Land Registration Act after the occurrence of an event or expiry of a period after which the lifetime of the order in the first instance. The court may also lift an inhibition if it has outlived its purpose or is no longer tenable. In this application, the prohibitory order was issued in D.M.’s Civil Suit Number 289 of 1979, gazette notice attached as KGG 4 related to HCCC & HCA record for 1968 – 1994, and civil cases as the lower court for 1988 Eldama Ravine.
4. There is no evidence that the Deputy Registrar of this court has confirmed that DMCC No. 287 of 1979 was among the files destroyed. A copy of the court register showing the outcome of the case is not attached.
5. The court may not be in a position to confirm whether there was a decree or judgment for computation of 12 years in order to declare the decree or order stale.
6. The land registrar has not issued the notice to whoever registered the caution or restriction, for it is not possible to register one without a corresponding entry in the register for the restrictions which must have details and contacts of the cautioner. The land registrar cannot shift goalposts and fail to exercise its mandate by issuing the notice. I find no merits in the application. It is dismissed with no order as to costs.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS OPEN COURT AT MERU ON THIS 17{{TH}} DAY OF JULY, 2024In presence ofC.A Kananu/MukamiApplicant in personHON. C K NZILIJUDGE