[2007] KEHC 3227 (KLR)
The court found that the plaintiff and her late husband were joint tenants of the property LR No.209/2745. Upon the husband's death, the property devolved solely to the plaintiff by right of survivorship. The inclusion of the property in the estate was an error, later rectified by a court order. As a result, the...
Source-derived case information.
- Citation
- [2007] KEHC 3227 (KLR)
- Parties
- Plaintiff: Jerusha Nyakerario Obare; Defendant: Samuel Omoni Obare
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 267 of 2006
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's application granted; caveat to be removed; no order as to costs.
- Judges
- KH Rawal
- Legal Topics
- Removal of Caveat, Joint Tenancy, Beneficial Interest Extinguishment, Succession Rectification
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jerusha Nyakerario Obare
Plaintiff
Samuel Omoni Obare
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the caveat registered by the defendant on LR No.209/2745 should be withdrawn and/or removed.
- 2 Whether the defendant's beneficial interest in LR No.209/2745 was extinguished by the rectification order in HCSC No.583 of 1991.
- 3 Whether the Registrar of Titles should be ordered to remove the caveat registered by the defendant.
Ratio Decidendi
The court found that the plaintiff and her late husband were joint tenants of the property LR No.209/2745. Upon the husband's death, the property devolved solely to the plaintiff by right of survivorship. The inclusion of the property in the estate was an error, later rectified by a court order. As a result, the defendant's beneficial interest was extinguished, and there was no legal basis for the caveat registered by the defendant. The court therefore ordered the removal of the caveat and found no grounds for awarding costs.
Court Disposition
Plaintiff's application granted; caveat to be removed; no order as to costs.
Orders
- The Commissioner of Lands is directed to remove the caveat registered as IR No.79971/2 on 19th January, 2004 on LR No.209/2745.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 267 of 2006
JERUSHA NYAKERARIO OBARE ………………….... PLAINTIFF
VERSUS
SAMUEL OMONI OBARE ………………………...... DEFENDANT
JUDGEMENT
I have before me an Original Summons dated 22nd June, 2006 premised under Section 57 of Registration of Titles Act (Cap 281), Order XXXVI Rule 3B of Civil Procedure Rules and all other enabling provisions of the Law.
It seeks following relief:
1. Whether the Defendant may show cause why caveat Registered as IR No.79971/2 on 19th January, 2004 on L.R. No.209/2745 should not be withdrawn and/or removed.
2. Whether the Defendants beneficial interest on LR. No.209/2745 (IR No.79971) have been extinguished by the Order given in HCSC No.583 of 1991 on 8th December, 2004.
3. Whether this Honourable court may be pleased to Order that the Registrar of Titles do remove the caveat Registered as on LR.NO.209/2745 (IR NO.79971) on 19th January, 2004 by the Defendant.
4. THAT the costs of this suit be provided for.
The reliefs are out of ordinary but I shall look at the spirit thereof.
Originating summons is supported on the grounds set out on the face of the application and on an affidavit in support sworn on 22nd June, 2005 by the Plaintiff herein.
The defendant herein has failed to file a response despite services effected on him on every stage of this proceedings. At the time of hearing of Originating Summons, after satisfying my self that the Defendant was properly served, I proceeded to hear the matter ex-parte.
The facts in this case are simple, not controverted and are supported by documents of title for the property in question.
The plaintiff was registered as a joint tenant along with her late husband Evans Omoni in respect of property known as LR. No.209/2745 (IR No.2733). After the demise of her husband a new grant was issued in her names vide grant No. IR 79971.
Due to oversight the said property was wrongly listed as an estate property in the Certificate of Grant issued to the plaintiff on 26th February, 1993 in HC Succession Cause No.583/91, which in any event was rectified by an order of the court on 8th December 2004.
With this order of rectification under which the suit property was removed from the list of estate properties, the beneficial interest of the Defendant over the same was clearly extinguished. I do accept the contention of the Plaintiff and find that the suit property became the property of the plaintiff on demise of her husband with whom she owned the property in joint tenancy.
The upshot of all the above is that I direct the Commissioner of Lands to remove the caveat registered as IR No.79971/2 on 19th January, 2004 on the property known as LR.No.209/2745.
I do not make any order on costs.
Dated and signed at Nairobi this 7th day of March, 2007.
K.H. RAWAL
JUDGE
7. 3.07