[2009] KEHC 2143 (KLR)
The court held that the application was fatally defective as it was commenced by a Notice of Motion, which is not the proper procedure for originating proceedings seeking to alter the registration of title under the Registration of Titles Act. The court emphasized that, regardless of the applicant's lack of legal...
Source-derived case information.
- Citation
- [2009] KEHC 2143 (KLR)
- Parties
- Applicant: Peterson Kariuki Ruirie; Respondent: Kelvin Rurie Kariuki; Respondent: Edwin Munyua Kariuki
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 299 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Originating Application
- Outcome
- application struck out
- Legal Topics
- Registration of Titles, Capacity of Minors, Originating Process, Mortgage Facilities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peterson Kariuki Ruirie
Applicant
Kelvin Rurie Kariuki
Respondent
Edwin Munyua Kariuki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Originating Application
Legal Issues
- 1 Whether a Notice of Motion is a proper procedure to originate proceedings for change of title from minors to the applicant.
- 2 Whether the applicant can be granted leave to change the registration of the property to himself for purposes of securing a mortgage facility.
Ratio Decidendi
The court held that the application was fatally defective as it was commenced by a Notice of Motion, which is not the proper procedure for originating proceedings seeking to alter the registration of title under the Registration of Titles Act. The court emphasized that, regardless of the applicant's lack of legal training or the sympathetic circumstances, it is bound by the law and cannot grant substantive orders where the process is fundamentally flawed. Consequently, the application was struck out for want of proper procedure, with no order as to costs.
Court Disposition
application struck out
Orders
- The application is struck out for being improperly before the court.
- No order as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
IN THEMATTER OF REGISTRATON OF TITLES ACT CAP 281 LAWS OF KENYA
AND
IN THE MATTER OF CERTIFICATE OF TITLE NUMBER CR. 11336/1. MN/VI/1552
AND
IN THE MATTER OF PETERSON KARIUKI RUIRIE ……………………………. APPLICANT
RULING
These proceedings have been commenced by a Notice of Motion by one, Peterson Kariuki Ruirie (hereinafter “the applicant”) who seeks leave to change to himself Plot No. MN/VI/1552-CR 11336/1 registered in the names of Kelvin Rurie Kariuki and Edwin Munyua Kariuki (both minors). The application is based on the grounds that the applicant is desirous of applying for mortgage facilities using the said property as security but cannot do so because the property is registered in the names of the said minors who have no capacity to execute security documents. The applicant contends that he requires the mortgage facility to finance the education of the said minors.
The application has however, not moved the court appropriately as a Notice of Motion cannot originate such proceedings. I symphathise with the applicant who has no training in law. Courts do not however, decide matters on the basis of sympathy. I have no alternative but strike out the application with no orders as to costs.
It is so ordered.
DATED AND DELIVERED AT MOMBASA THIS 28TH DAY OF AUGUST 2009.
F. AZANGALALA
JUDGE
Read in the presence of: -
The applicant.
F. AZANGALALA
JUDGE
28. 8.2009