[2017] KEHC 7815 (KLR)
The court found that the prohibitory order registered against L.R. No. Nyandarua/Njabini/465 was intended to preserve the suit land pending the hearing and determination of the related suits. Since those suits have now been conclusively determined in favour of the plaintiff, the rationale for maintaining the...
Source-derived case information.
- Citation
- [2017] KEHC 7815 (KLR)
- Parties
- Plaintiff: James Kamuru Kamau; Defendant: Lucy Muthoni Kabata; Defendant: John Kamau Kabata
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2644 of 1993
- Procedural Posture
- Civil Suit / Ruling on Ex Parte Motion to Remove Prohibitory Order
- Outcome
- Motion allowed; prohibitory order to be removed; no order as to costs.
- Judges
- JK Sergon
- Legal Topics
- Prohibitory Orders, Removal of Entries, Land Title Disputes, Execution of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kamuru Kamau
Plaintiff
Lucy Muthoni Kabata
Defendant
John Kamau Kabata
Defendant
Procedural Posture
Civil Suit / Ruling on Ex Parte Motion to Remove Prohibitory Order
Legal Issues
- 1 Whether the prohibitory order registered against L.R. No. Nyandarua/Njabini/465 should be removed.
- 2 Whether the conclusion of the related suits justifies the lifting of the prohibitory order.
Ratio Decidendi
The court found that the prohibitory order registered against L.R. No. Nyandarua/Njabini/465 was intended to preserve the suit land pending the hearing and determination of the related suits. Since those suits have now been conclusively determined in favour of the plaintiff, the rationale for maintaining the prohibitory order no longer exists. The court was satisfied that the applicant had demonstrated sufficient grounds for the removal of the order, and accordingly allowed the motion to lift the prohibitory order as prayed.
Court Disposition
Motion allowed; prohibitory order to be removed; no order as to costs.
Orders
- The prohibitory order registered against L.R. No. Nyandarua/Njabini/465 as entry no. 3 on 21.6.1980 is to be removed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL SUIT NO. 2644 OF 1993(OS)
JAMES KAMURU KAMAU...................PLAINTIFF/RESPONDENT
VE R S U S
LUCY MUTHONI KABATA.....................................1ST DEFENDANT
JOHN KAMAU KABATA ...................................... 2ND DEFENDANT
RULING
1) James Kamuru Kamau, the plaintiff/applicant herein took the motion dated 14th September 2016 in which he sought for an order to have the prohibitory order registered against L.R. no. Nyandrua/Njabini/465 as entry no. 3 on 21. 6.1980, to be removed.
2) The motion is exparte in nature and is supported by the affidavit of the plaintiff/applicant.
3) I have considered the grounds stated on the face of the motion and the facts deponed in the supporting affidavit. It is the submission of the plaintiff/applicant that he filed Nairobi R.M.C.C.C no. 2116 of 1978 claiming for payment of ksh.7,000/= from Kabata Macharia now deceased, being a refund of part purchase price of a piece of land which Kabata Macharia had agreed to sell to the plaintiff but later refused to complete the transaction. The suit was eventually decided in favour of the plaintiff on 29th January 1980.
4) The plaintiff filed this suit in which he sought to be declared to have acquired 5 acres to be excised from L.R. No. Nyandarua/ Njabini/465. The plaintiff successfully vide Nairobi R.M.C.C.C. no. 2116 of 1978 obtained a prohibitory order registered against the aforesaid title on 21. 6.1980. This suit was heard and determined in favour of the plaintiff as prayed in the amended Originating Summons dated 28th January 1999 vide the ruling of Justice Lenaola delivered on 21st January 2004.
5) The purpose of the prohibitory and inhibitory orders were to preserve the suit land until the aforesaid suits are heard and determined. I am satisfied that the suits have now been concluded hence there is no need for the prohibitory order to continue subsisting. I find the motion dated 14. 09. 2016 to be meritorious.
6) It is allowed as prayed with no order as to costs.
Dated, Signed and Delivered in open court this 27th day of January, 2017.
J. K. SERGON
JUDGE
In the presence of:
.......................................... for the Appellant
........................................... for the Respondent