[2020] KEELC 303 (KLR)
The court found that the plaintiff's claim to the land had been dismissed for failure to prove his case on a balance of probabilities. The 2nd defendant/applicant was found to be a bona fide purchaser for value. Since the restriction was registered in favour of the plaintiff, and his claim has been dismissed, there...
Source-derived case information.
- Citation
- [2020] KEELC 303 (KLR)
- Parties
- Plaintiff: Hezron Sudi Indengezi; Defendant: Thomas Suti Maluha; Defendant: Benard Techu Beyu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 223 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Lift Restriction and Give Effect to Consent Judgment
- Outcome
- Application allowed. Orders granted as prayed in prayers 1 and 2. No order as to costs.
- Judges
- NA Matheka
- Legal Topics
- Removal of Restriction, Consent Judgment Enforcement, Bonafide Purchaser, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hezron Sudi Indengezi
Plaintiff
Thomas Suti Maluha
Defendant
Benard Techu Beyu
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Lift Restriction and Give Effect to Consent Judgment
Legal Issues
- 1 Whether the restriction registered on LR No. Kakamega/Kapsotik/287 should be lifted or discharged.
- 2 Whether the consent judgment of 7th March, 2018 should be given effect.
- 3 Whether the applicant is entitled to the orders sought given the dismissal of the plaintiff's claim.
Ratio Decidendi
The court found that the plaintiff's claim to the land had been dismissed for failure to prove his case on a balance of probabilities. The 2nd defendant/applicant was found to be a bona fide purchaser for value. Since the restriction was registered in favour of the plaintiff, and his claim has been dismissed, there is no longer any legal basis for the restriction to remain. The application was unopposed, and the court found merit in granting the orders sought to lift the restriction and give effect to the consent judgment.
Court Disposition
Application allowed. Orders granted as prayed in prayers 1 and 2. No order as to costs.
Orders
- The restriction registered on 28th February, 2013, entry No. 3 or any other restraints on disposition in respect of register/title Land parcel LR No. Kakamega/Kapsotik/287 is hereby lifted/discharged/removed forthwith.
- The consent judgment of 7th March, 2018 in Kak HCELC 104/17 is to be given effect.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC CASE NO. 223 OF 2017
HEZRON SUDI INDENGEZI ....................... PLAINTIFF/RESPONDENT
VERSUS
THOMAS SUTI MALUHA ................................................. DEFENDANT
BENARD TECHU BEYU ........................2ND DEFENDANT/APPLICANT
RULING
The application is dated 29th July 2020 and is brought under Sections 1A, 3A of the Civil Procedure Act and Sections 78 of the Land Registration Act Cap 300 seeking the following orders:-
1. That the restriction registered on 28th February, 2013, entry No. 3 or any other restraints on disposition in respect of register/title Land parcel LR No. Kakamega/Kapsotik/287 be and is hereby lifted/discharged/removed forthwith.
2. That the consent judgment of 7th March, 2018 in Kak HCELC 104/17 be given effect.
3. That costs be provided for;
It is based on the affidavit of Bernard Techu Beyo and grounds that a restriction was placed registered in register of Kakamega/Kapsotik/287 in favour of Hezron Sudi Indengezi which is pending. Hezron Sudi Indengezi’s claim in the land was herein dismissed on 19th February, 2020. The interested party by consent of 7th March, 2018 in Kak. HC ELC 104/17 was awarded part of the subject matter. There are no good reasons to have the restriction in force.
This court has considered the application and the submissions therein. The respondent was served but failed to attend court or file any response. I have perused the court file and indeed find that in a judgement delivered on the 19th February 2020 and the court found that the plaintiff had failed to establish his case on a balance of probabilities and his case was dismissed. The court found that the 2nd defendant/applicant was a bonafide purchaser for value. This application has not been opposed. I find it is merited and grant prayer 1 and 2. There will be no orders as to costs as the same was undefended.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 15TH DECEMBER 2020.
N.A. MATHEKA
JUDGE