[2014] KEHC 2384 (KLR)
The court found that while the applicant sought unconditional removal of the restriction, the respondent had demonstrated at least a prima facie claim to the land, supported by a sale agreement and the chief's intervention. However, the respondent had been indolent in not pursuing his claim through a substantive...
Source-derived case information.
- Citation
- [2014] KEHC 2384 (KLR)
- Parties
- Respondent: James Misiko Walubayi; Applicant: Albert Masinde Libonda
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 73 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Removal of Restriction
- Outcome
- Application allowed conditionally.
- Judges
- AA Omollo
- Legal Topics
- Removal of Restriction, Land Registration, Caution on Title, Sale of Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
James Misiko Walubayi
Respondent
Albert Masinde Libonda
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Removal of Restriction
Legal Issues
- 1 Whether the restriction placed on title E. Bukusu/S. Kanduyi/15897 should be removed.
- 2 Whether the respondent has any valid claim or interest in the suit land justifying the restriction.
- 3 Whether the validity of the sale agreement can be determined in an application for removal of restriction.
Ratio Decidendi
The court found that while the applicant sought unconditional removal of the restriction, the respondent had demonstrated at least a prima facie claim to the land, supported by a sale agreement and the chief's intervention. However, the respondent had been indolent in not pursuing his claim through a substantive suit since 2005. The court held that the validity of the sale agreement could not be determined in this application and that the proper course was for the respondent to file a suit to establish his claim. Accordingly, the court allowed the application conditionally: the restriction would remain for 90 days to allow the respondent to file a suit and obtain a restriction based on...
Court Disposition
Application allowed conditionally.
Orders
- The restriction on title E. Bukusu/S. Kanduyi/15897 to remain for ninety (90) days to allow the respondent to file a suit and obtain a restriction based on that suit.
- If the respondent does not file such a suit within 90 days, the restriction stands removed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
HC MISC. APPLICATION NO. 73 OF 2013
JAMES MISIKO WALUBAYI ….......................................APPLICANT
VERSUS
ALBERT MASINDE LIBONDA ….................................RESPONDENT
RULING
1. The applicant Albert Masinde Libonda is asking this court for an order to remove a restriction placed on his title E. Bukusu/S. Kanduyi/15897. He claims according to his papers that he has had no dealings with the respondent James Misiko over this land and that the respondent has absolutely no right to restrict his dealings on this parcel. He went further to state that the respondent ought to have restricted parcel no. E. Bukusu/S. Kanduyi/1951 but he failed to do so hence he is guilty of laches.
2. The respondent has opposed the application by his affidavit in reply. He deposes that Fred Nyongesa Libonda who is a brother to the applicant sold to him one acre of land comprised in E. Bukusu/S. Kanduyi/1951 for the construction of a church. That E. Bukusu/S. Kanduyi 15897 was the new number for their church portion. The applicant even stated he had transferred the land to the church and gave title to the people he sent which statement was not true. On doing a search, he discovered the land was already transferred and registered in the name of a rival church, Kenya Church of Christ Namisi.
3. I have perused the certificate of official search dated 6th June 2012 annexed to the applicant's affidavit. It shows the restriction was placed by Namisi church of Christ c/o pastor J. Misiko. The second certificate of official search dated 8th May 2014 shows Kenya Church of Christ – Namisi as current owner of the suit title as at 22nd October 2013 and free of any encumbrances. The transfer it seems was effected as soon as I had allowed the application of 1st October 2013 which was allowed exparte on that date. The applicant cannot therefore claim not to have any more interest on this title yet the order which he used to remove the restriction has subsequently been set aside. The effect of setting aside the orders imply the title is in same status it was before the order was given.
4. In the chief''s letter that formed the basis of putting the restriction on the title no. 15897 by the respondent, the chief had asked the parties to sit down and resolve the dispute. The applicant states he was the registered owner of parcel no. E. Bukusu/S. Kanduyi/1951 as at 2005 and so any sale done without his blessings was illegal. There was nothing put to court to confirm this averment. However the issue at stake is whether the applicant has any iota of claim on this land and not whether there was a valid sale of land. In answering this, I think he does otherwise the local administration (chief) would not have written the letter (JWMc). There is also a sale agreement annexed as JWM (b) in the replying affidavit which the applicant doubts its authenticity. Under section 71 (a) of the Land Registration Act any person who claims a right whether contractual or otherwise can lodge a caution.
5. In an application for removal of a restriction, the validity or otherwise of a sale agreement cannot be determined. It would be necessary for such issues to be raised in a proper suit. Secondly the respondent ought to file a suit to prove his claim if any and not lodge a restriction and sit back. I agree with the applicant that the respondent was indolent in not taking steps to acquire title from date of sale in 2005. Be that as it may, it is necessary to give the respondent an opportunity to present his case. The application is allowed conditionally that the title to remain restricted for ninety (90) days (within which) to allow the respondent place a restriction obtained on basis of an existing suit. If he does not do so within theset timelines, this restriction stands removed. Costs of the application be born by each of the parties.
Dated and Delivered in Bungoma this 15th day of October, 2014.
A. OMOLLO
JUDGE