[2021] KEELC 167 (KLR)
The court found that the applicant, being the 2nd defendant, had counsel on record and had not filed a notice to act in person, thus lacked capacity to file the application personally. The application was also improperly titled and there was no evidence of service on all parties. Additionally, the applicant failed...
Source-derived case information.
- Citation
- [2021] KEELC 167 (KLR)
- Parties
- Applicant: Japhet Kaimenyi Ndatho; Respondent: Mbijiwe Marangu Muchiri (deceased, substituted by Judith Ngugi Mbijiwe)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 81 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Discharge Inhibition Order
- Outcome
- application struck out
- Legal Topics
- Inhibition Orders, Adverse Possession, Capacity to Sue, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japhet Kaimenyi Ndatho
Applicant
Mbijiwe Marangu Muchiri (deceased, substituted by Judith Ngugi Mbijiwe)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Discharge Inhibition Order
Legal Issues
- 1 Whether the applicant had the legal capacity to file the application for discharge of inhibition order.
- 2 Whether the application was properly titled and served on all parties.
- 3 Whether the inhibition order should be discharged given the determination of the main suit.
Ratio Decidendi
The court found that the applicant, being the 2nd defendant, had counsel on record and had not filed a notice to act in person, thus lacked capacity to file the application personally. The application was also improperly titled and there was no evidence of service on all parties. Additionally, the applicant failed to attach the inhibition order sought to be discharged. These procedural defects were fatal to the application. Consequently, the court struck out the application for being bad in law and filed by a person without capacity, with no order as to costs.
Court Disposition
application struck out
Orders
- The application dated 18.8.2021 is struck out for want of capacity and procedural defects.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
ELC NO. 81 OF 2012
JAPHET KAIMENYI NDATHO...................................................................PLAINTIFF
VERSUS
MBIJIWE MARANGU MUCHIRI...........................................................RESPONDENT
RULING
1. The application before court is the one dated 18. 8.2021 seeking for the discharge of inhibition order issued against L.R Abothuguchi/Lower/Kaongo/514. The application is supported by an affidavit by Japhet Kaimenyi Ndatho sworn on the even date.
2. The grounds upon which the application is made are that the applicant was 2nd defendant in the suit where the inhibition was issued in favour of the plaintiff. Secondly, the suit was heard and determined on 26. 10. 2015 yet he continues to be inconvenienced by the subsisting orders. When the matter came up for hearing on 28. 10. 2021, Mr. Riungu Advocate for the plaintiff submitted the application is brought by a different person from the plaintiff in the suit.
3. Counsel urged the court to look at the pleadings and notice the plaintiff in the suit was Mbijiwe Marangu now deceased and was replaced by Japhet Ngugi Mbijiwe while the defendants were three in number among them the applicant.
4. Further counsel submitted the application was not well titled and that there was no indication whether he had served all the parties in the matter with the application.
5. Counsel went on to submit the applicant had not attached any inhibition order issued so as to assist the court make a proper determination.
6. Additionally, counsel submitted that though the decree had been issued on 21. 2.2018, the land had not been decreed to the applicant but someone else.
7. In reply, Japhet Ndatho the applicant submitted in the determination made on 26. 10. 2015, the land was his together with one Francis Kaburu.
8. The court record indicates the applicant herein was the 2nd defendant in the suit whose advocates on record are M/S Gichunge Muthuri & Co. Advocates.
9. By a decree issued on 3. 12. 2018, the suit land was decreed to the plaintiff on account of adverse possession and the Land Registrar was ordered to replace the names of Japhet Kaimenyi Ndatho and Fancis Kaburu M’Marete with that of Mbijiwe Marangu with a further order that the two do execute all relevant documents to facilitate the transfer of the suit land in favour of the plaintiff in default the Executive Officer of the court to execute them.
10. The record further shows the plaintiff passed on and was replaced with one Judith Ngugi Mbijiwe.
11. From the record the court has not come across any notice to act in person filed by the 2nd defendant so as to have the capacity to file the instant application. In my considered view the 2nd defendant has counsel on record who has also filed an appeal on his behalf to the Court of Appeal.
12. In view of the foregoing, my finding is that the application is not only improperly titled but also filed by a person without capacity.
13. Moreover, there is no affidavit to show that all parties to the matter have been served with the application.
14. In the circumstances, the court finds the application bad in law. The same is struck out with no order as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 20TH DAY OF DECEMBER, 2021
In presence of:
Kimathi holding brief for Riungu for respondent
Plaintiff in person
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE