[2011] KEHC 1466 (KLR)
The court found that the applicant's caution against the suit property was removed pursuant to an order allegedly issued in the present suit, but upon perusal of the court record, no such order was found to exist. The removal of the caution and subsequent subdivision and transfer of the property to third parties,...
Source-derived case information.
- Citation
- [2011] KEHC 1466 (KLR)
- Parties
- Plaintiff: James Waigwa Kaireti; Defendant: The Hon. The Attorney General; Defendant: Stephen Gitau Kamau; Defendant: The Director Land Adjudication and Settlement; Defendant: District Land Registrar Nyandarua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 2076 of 2001
- Procedural Posture
- Civil Suit / Interlocutory Application Ruling
- Outcome
- Application granted in part.
- Judges
- GG Okwengu
- Legal Topics
- Removal of Caution, Fraudulent Land Transactions, Proprietary Rights, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Waigwa Kaireti
Plaintiff
The Hon. The Attorney General
Defendant
Stephen Gitau Kamau
Defendant
The Director Land Adjudication and Settlement
Defendant
District Land Registrar Nyandarua
Defendant
Procedural Posture
Civil Suit / Interlocutory Application Ruling
Legal Issues
- 1 Whether the removal of the caution against the suit property was irregular and fraudulent.
- 2 Whether the subdivision and transfer of the suit property to third parties was done to defeat the applicant's rights.
- 3 Whether the defendants should be compelled to explain the removal of the caution and subsequent transactions.
Ratio Decidendi
The court found that the applicant's caution against the suit property was removed pursuant to an order allegedly issued in the present suit, but upon perusal of the court record, no such order was found to exist. The removal of the caution and subsequent subdivision and transfer of the property to third parties, without notice to the applicant and in the absence of a valid court order, raised serious concerns of irregularity and possible fraud. As the respondents failed to contest the applicant's averments, the court accepted the applicant's version of events as uncontroverted. The court therefore ordered the 2nd and 4th defendants to appear and explain the circumstances under which the...
Court Disposition
Application granted in part.
Orders
- The 2nd and 4th defendants/respondents are to be summoned to appear before the court to give an explanation as to how the caution was removed and the suit property subdivided, sold and transferred.
- The applicant is granted liberty to apply to have the third parties to whom the suit property has been transferred joined as parties to the suit.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
LAND AND ENVIRONMENTAL LAW DIVISION
CIVIL SUIT NO.2076 OF 2001
JAMES WAIGWA KAIRETI..............................................................................................PLAINTIFF
VERSUS
THE HON. THE ATTORNEY GENERAL...............................................................1ST DEFENDANT
STEPHEN GITAU KAMAU.....................................................................................2ND DEFENDANT
THE DIRECTOR LAND ADJUDICATIONAND SETTLEMENT..........................3RD DEFENDANT
DISTRICT LAND REGISTRARNYANDARUA......................................................4TH DEFENDANT
R U L I N G
1. James Waigwa Kaireti (hereinafter referred to as the applicant), has moved this court under Section 3A and 63(e) of the Civil Procedure Act seeking orders as follows:
(i)That pending hearing and determination of this suit, this honourable court be pleased to order the defendants/respondents to give satisfactory explanation on how the suit land (subject matter) was sub-divided and sold and title documents issued to third parties to defeat the course of justice in this suit.
(ii)That this honourable court be pleased to demand a satisfactory explanation from the defendants/ respondents on how a caution which had been placed against the title to the suit land (subject matter) by the plaintiff/applicant was removed by the Land Registrar Nyandarua (4th defendant/respondent) on 23rd November, 2006 vide a fraudulent court order which was purporting to have been issued by this honourable court in this suit when in fact no such order had been applied for by any party and or issued by this honourable court.
(iii)That this honourable court be pleased to grant appropriate orders in view of the new development on the subject matter in particular appropriated orders aimed at restoring the subject matter to its initial position at the commencement of this suit.
(iv)That cost of this application be provided for.
2. The applicant has sworn an affidavit in support of his application. In short the applicant is aggrieved that a caution which he lodged against the title to Nyandarua/Ol’Joro’orok Salient/1840 in October, 2001, has been irregularly removed without notice to him. The applicant had filed this suit claiming proprietary rights over the suit property. The suit is partly heard before this court.
3. The applicant has now discovered that the caution which he lodged against the suit property has been irregularly removed, and the suit property sub-divided into two portions. The two portions have been sold and transferred to third parties. The applicant maintains that the removal of the caution was deliberately done to defeat his rights over the suit property. This amounts to a miscarriage of justice and an abuse of the court process. Although the respondents were duly served, none of them has filed any reply to the application. Therefore the facts as deponed to by the applicant stand uncontroverted.
4. I have considered the application, the affidavit in support and the annexures thereto. From the copy of the Green Card which was annexed to the affidavit sworn in support of the application, it is apparent that the caution lodged against the suit property was removed on 23rd November, 2006 pursuant to an order allegedly issued in this suit. My perusal of the proceedings in this suit has not revealed any such order. There is therefore need for an appropriate explanation particularly from the 2nd and 4th defendants, with regard to how the caution was removed and the suit property subdivided and sold.
5. In the circumstances, I grant the application to the extent of issuing orders for the 2nd and 4th defendants/respondents to be summoned to appear before this court to give an explanation as to how the caution was removed and the suit property sub-divided, sold and transferred. Further, since it is evident that the suit property is now in the hands of third parties, I would grant the applicant liberty to apply to have the 3rd parties to whom the suit property has been transferred joined as parties to this suit.Those shall be the orders of this court.
Dated and delivered this 23rd day of June, 2011
H. M. OKWENGU
JUDGE
In the presence of: -
Kamere for the plaintiff/applicant
Wasike H/B for Natome for the defendants/respondents
B. Kosgei - Court clerk