[2018] KEELC 1298 (KLR)
The court found that since the suit had been dismissed on 7th February, 2018, all orders issued within the suit, including the inhibition order over parcel No. Mwimbi/Chogoria/4652, were rendered invalid and vacated by the dismissal. The court therefore allowed the application to lift the inhibition. However,...
Source-derived case information.
- Citation
- [2018] KEELC 1298 (KLR)
- Parties
- Plaintiff: Irvine Mwenda Japhet; Defendant: M’Kanga M’Rwito Kanyinyiro
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 212 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Post Dismissal Application to Lift Inhibition
- Outcome
- Application allowed; inhibition order lifted; no costs awarded.
- Judges
- FM Njoroge
- Legal Topics
- Inhibition Orders, Land Title Restrictions, Dismissal of Suit, Vacation of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irvine Mwenda Japhet
Plaintiff
M’Kanga M’Rwito Kanyinyiro
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Dismissal Application to Lift Inhibition
Legal Issues
- 1 Whether the inhibition order over parcel No. Mwimbi/Chogoria/4652 should be lifted following the dismissal of the suit.
- 2 Whether any costs should be awarded to the applicant in the circumstances.
Ratio Decidendi
The court found that since the suit had been dismissed on 7th February, 2018, all orders issued within the suit, including the inhibition order over parcel No. Mwimbi/Chogoria/4652, were rendered invalid and vacated by the dismissal. The court therefore allowed the application to lift the inhibition. However, recognizing that the applicant was equally to blame for the dismissal of the suit, the court exercised its discretion to deny costs to the applicant both in the main suit and in the application.
Court Disposition
Application allowed; inhibition order lifted; no costs awarded.
Orders
- The inhibition order and any other restriction over parcel No. Mwimbi/Chogoria/4652 is lifted.
- No costs are awarded in the main suit and in this application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 212 OF 2017
IRVINE MWENDA JAPHET..........................PLAINTIFF
VERSUS
M’KANGA M’RWITO KANYINYIRO.........DEFENDANT
RULING
1. The application states that it has been brought to court under Sections 3, 3A, 63e and Order 51 Rule 1 of the Civil Procedure Rules. The application is dated 3rd October, 2018 and seeks the following orders:
1. That this application be certified as urgent and be heard on priority basis.
2. That this honourable court be pleased to lift the orders of inhibition and any other restriction over parcel No. MWIMBI/CHOGORIA/4652.
3. That the costs of this application be provided for.
2. The application has the following grounds:
a) That the suit was determined by way of dismissal in early 2018.
b) That the parcel of land subject to this suit is Mwimbi/Chogoria/4652.
c) That the suit land is still encumbered and the suit has been determined.
3. The application is buttressed by an affidavit sworn by the applicant on3rd October, 2018which states as follows:
I, M’KANGA M’RWITO KANYINYIRO of P. O. Box 12 CHOGORIA, do hereby make oath and swear as follows:-
1. That I am the defendant/applicant herein well versed with the facts of this matter and therefore competent to make and swear this affidavit.
2. That this suit was determined in my favour by way of dismissal in early 2018.
3. That the respondent had inhibited my land being parcel No. Mwimbi/Chogoria/4652 on 31st day of October, 2011 by way of an order issued on 2. 11. 2011 hereto annexed and marked “MMK 1” is a copy of the same.
4. That I cannot deal with my land due to the inhibition order.
5. That there being no other business in court over this case, I need my land freed from my (sic) dealing.
6. That the facts deponed to herein are true and accurate to the best of my knowledge and belief.
4. As this suit was dismissed on 7th February, 2018 meaning that any orders issued therein are automatically invalid and have been vacated by the apposite dismissal, I will allow the application. However, since the applicant was equally to blame for the dismissal of the suit, no costs will be awarded to him. Therefore the following orders are issued:
a) This application is allowed in terms of prayer 2 thereof.
b) No costs are awarded in the main suit and in this application.
5. It is so ordered.
Delivered in open Court at Chuka this 23rd day of October, 2018 in the presence of:
CA: Ndegwa
Charles Muchiri h/b Mwanzia for the defendant
P.M. NJOROGE
JUDGE