[2019] KEELC 2395 (KLR)
The court found that the applicant had demonstrated the necessity of amending the previous order to specifically include the discharge of charge, as advised by the Land Registrar. The amendment was required to facilitate the registration of the discharge and ensure the title to LR.No.Limuru/Bibirioni/T.443 would be...
Source-derived case information.
- Citation
- [2019] KEELC 2395 (KLR)
- Parties
- Applicant: Mary Njeri Mwaura; Respondent: Land Registrar Kiambu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Miscellaneous Case 38 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Amend Previous Court Order
- Outcome
- application allowed
- Judges
- LN Gacheru
- Legal Topics
- Discharge of Charge, Land Registration, Removal of Restriction, Land Title Encumbrances
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Njeri Mwaura
Applicant
Land Registrar Kiambu
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Amend Previous Court Order
Legal Issues
- 1 Whether the court should amend its previous order to specifically include a clause for discharge of charge over LR.No.Limuru/Bibirioni/T.443.
- 2 Whether such amendment is necessary to facilitate registration of the discharge of charge.
Ratio Decidendi
The court found that the applicant had demonstrated the necessity of amending the previous order to specifically include the discharge of charge, as advised by the Land Registrar. The amendment was required to facilitate the registration of the discharge and ensure the title to LR.No.Limuru/Bibirioni/T.443 would be free from encumbrances. The court noted that the charge registered in 1982 had not been realized and the loan had been repaid, making the discharge appropriate. Therefore, the application to amend the order was merited and allowed in its entirety.
Court Disposition
application allowed
Orders
- The previous court order is amended to include the clause 'discharge of charge' regarding LR.No.Limuru/Bibirioni/T.443.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT THIKA
ELC MISC.CASE NO.38 OF 2017
IN THE MATTER OF DISCHARGE OF CHARGE AGAINST LR.NO.LIMURU/BOBIRIONI/T.443
AND
IN THE MATTER OF THE LAND REGISTRAR KIAMBU
MARY NJERI MWAURA.................................................................APPLICANT
RULING
The Court has considered the Notice of Motion application dated 23rd April 2019, wherein the applicant has sought for orders that:
1) That this Honourable Court be pleased to amend its orders issued on the 21st December 2017 especially in Order 1 which reads…That an Order be and is hereby issued directing the Land Registrar Kiambu to withdraw a Restriction and/or Caution against LR.No.Limuru/Bibirioni/ T.443by inclusion of the clause ‘discharge of charge’.
2) That costs of this application be provided for.
The application is supported by the affidavit of Mary Njeri Mwaura and on the following grounds:-
a) That the Applicant has been advised by the Land Registrar Kiambu to have the orders issued on the 21st September 2018 amended to specifically capture the existing charge dated 23rd September 1982 for effective execution of the discharge of charge against LR.No.Limuru/Bibirioni/T.443.
b) That there is need for the amendment as sought to facilitate the registration of a discharge of charge.
This is an exparte application and it is evident that on 13th June 2017, the Applicant has filed another Miscellaneous Application wherein shesought for orders that the court do grant orders directing the LandRegistrar Kiambu to withdraw restriction and/or caution against Limuru/Bibirioni/T.443. It is also evident that on 20th December 2017, the court allowed the said application dated 13th June 2017. An Order was extracted on 21st December 2017 wherein the Land Registrar Kiambu was directed to withdraw a restriction and or caution against the suit property. It is also evident that in the said Ruling of 20th December 2017, the court had noted that there was a charge registered over the suit property on 23rd September 1982, but however the benefactor of the said charge had never sought to realize the security and that meant that the loan was repaid.
The Applicant seeks for discharge of the said charge so that the title can be free from any encumbrances. For the above reasons, the court finds the Applicant’s Notice of Motion date 23rd April 2019 is merited and the same is allowed entirely and there is now inclusion of clause ‘discharge of charge’ in the earlier order issued by the court. Costs shall be in the cause.
It is so ordered.
Dated, Signed and Delivered at Thika this 12th day ofJuly 2019.
L. GACHERU
JUDGE
In the presence of
Present in person Mary Njeri Mwaura for Applicant
Lucy - Court Assistant.
L. GACHERU
JUDGE
12/7/2019