[2010] KEHC 642 (KLR)
The court found that the caution registered by the plaintiff against the suit property was inconsistent with its earlier order rejecting the application for an interlocutory injunction. Allowing the caution to remain would effectively restrain dealings with the property, contrary to the court's determination that...
Source-derived case information.
- Citation
- [2010] KEHC 642 (KLR)
- Parties
- Plaintiff: John Ihugo Mungai; Defendant: Peter Kihuhi Njuguna
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 596 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application to Remove Caution
- Outcome
- Defendant's application allowed; caution to be removed; costs to defendant.
- Legal Topics
- Removal of Caution, Land Registration, Interlocutory Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Ihugo Mungai
Plaintiff
Peter Kihuhi Njuguna
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Remove Caution
Legal Issues
- 1 Whether the caution lodged by the plaintiff against the suit property should be removed.
- 2 Whether the continued registration of the caution is inconsistent with the court's earlier order rejecting the interlocutory injunction.
Ratio Decidendi
The court found that the caution registered by the plaintiff against the suit property was inconsistent with its earlier order rejecting the application for an interlocutory injunction. Allowing the caution to remain would effectively restrain dealings with the property, contrary to the court's determination that such restraint was unmerited. Therefore, the defendant's application to remove the caution was allowed, and the plaintiff was ordered to pay the costs of the application.
Court Disposition
Defendant's application allowed; caution to be removed; costs to defendant.
Orders
- The caution lodged by the plaintiff and registered against the suit property Kiambu/Munyu/222 is to be removed.
- Plaintiff shall pay costs of this application to the defendant.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI LAND AND ENVIRONMENTAL LAW DIVISION CIVIL SUIT (ELC) NO.596 OF 2009
JOHN IHUGO MUNGAI………………………………...PLAINTIFF VERSUS PETER KIHIUHI NJUGUNA……...………………….DEFENDANT
R U L I N G
1. Peter Kihuhi Njuguna who is the defendant in this suit has come to this court under Section 133(1) of the Land Registered Act seeking to have the caution lodged by the plaintiff against the suit property known as Kiambu/Munyu/222 removed. It is evident that the caution was lodged by the plaintiff with the Land Registrar on 5th May, 2010, and that the Land Registrar accepted the caution on the basis of the fact that the consent suit was pending. Subsequently, an application for an interlocutory injunction lodged by the plaintiff was rejected by this court.
2. I find that the caution which is still registered against the suit property is inconsistent with the order made by this court rejecting the application for interlocutory injunction. To have the caution remain registered against the suit property would have the effect of restraining the plaintiff from dealing with the suit property during the pendency of this suit, a matter which the court has in its ruling dated 1st March, 2010, found to be unmerited.
3. In the circumstances, I allow the defendant’s application dated 25th June, 2010 and order that the caution lodged by the plaintiff and registered against the suit property be removed. Plaintiff shall pay costs of this application to the defendant. Orders accordingly.
Dated and delivered this 12th day of November, 2010
H. M. OKWENGU JUDGE
In the presence of: - Mwaura for the plaintiff/respondent Advocate for the defendant/applicant absent B. Kosgei - Court clerk