[2021] KEELC 4222 (KLR)
The court found that the applicant failed to comply with a specific court order requiring the filing of an affidavit of service. This procedural lapse was deemed fatal to the application, regardless of the merits of the substantive claim. The court emphasized that its orders are not made in vain and must be adhered...
Source-derived case information.
- Citation
- [2021] KEELC 4222 (KLR)
- Parties
- Applicant: Jane Kanda Kipkorir; Respondent: The County Lands Officer (Trans Nzoia)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application 2 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Application
- Outcome
- application struck out for non-compliance with procedural order
- Legal Topics
- Release of Title Deed, Affidavit of Service, Striking Out Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Kanda Kipkorir
Applicant
The County Lands Officer (Trans Nzoia)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Application
Legal Issues
- 1 Whether the applicant is entitled to an order compelling the respondent to release the original title deed for land parcel No. 1615 Milimani Settlement Scheme.
- 2 Whether failure to file an affidavit of service is fatal to the application.
Ratio Decidendi
The court found that the applicant failed to comply with a specific court order requiring the filing of an affidavit of service. This procedural lapse was deemed fatal to the application, regardless of the merits of the substantive claim. The court emphasized that its orders are not made in vain and must be adhered to strictly. As a result, the application was struck out solely on the ground of non-compliance with the procedural requirement, and no consideration was given to the substantive issues raised by the applicant.
Court Disposition
application struck out for non-compliance with procedural order
Orders
- The application dated 6/1/2021 is struck out for failure to file an affidavit of service.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
ELC MISC. APP. NO. 2 OF 2021
JANE KANDA KIPKORIR....................................................................APPLICANT
VERSUS
THE COUNTY LANDS OFFICER....................(TRANS NZOIA) .RESPONDENT
RULING
1. The application dated 6/1/2021and filed in court on 14/1/2021 has been brought by the applicant under Order Sections 1A, 1B, 3, 3Aand63of theCivil Procedure Act, Order 51 Rule 1of theCivil Procedure RulesandSection 13and19of theEnvironment and Land Court Act. The applicant seeks the following orders:-
(1) That this application be certified as urgent and the same be heard ex parte on priority.
(2) That the county Lands Officer, Trans Nzoia be ordered to forthwith release the original title document in respect of land parcel No. 1615 Milimani Settlement Scheme.
(3) Costs be provided for.
2. The application is supported by the affidavit of the applicant sworn on 6/1/2021. The grounds on the fact of the application are that the applicant is a holder of Power of Attorney No. 502/10 registered on 4/5/2010; that pursuant to the said powers the applicant filed suit in Kitale ELC No. 86 of 2010 against Dorcas Chebet and Others, a decree was issued declaring the said parties trespassers thereon; that the applicant did make payments in respect of the outstanding loan, discharge of charge and title to facilitate processing of title documents and that the respondent has now refused to release the original title deed despite requests made to her. No replying affidavit was filed in response to the application. The applicant filed her written submissions on 22/2/2021. The respondent filed no submissions.
3. I find that the applicant has not complied with the order of this court, which was not made idly, to the effect that she ought to file an affidavit of service. Consequently the application dated 6/1/2021 is hereby struck out on that ground alone. There shall be no orders as to costs.
It is so ordered.
Dated, signedanddeliveredatKitale via electronic mail on this 25thday of February, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE.