[2007] KEHC 2145 (KLR)
The court found that the applicant, having constructed a valuable business on the suit property with the respondent's consent and in the absence of any opposition from the respondent, had established a prima facie case for the extension of the caveat. The court held that the caveat should remain in place to preserve...
Source-derived case information.
- Citation
- [2007] KEHC 2145 (KLR)
- Parties
- Applicant: John Njau Gatehi; Respondent: Miriam Wangari Njau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 2193 of 2007
- Procedural Posture
- Originating Summons / Interlocutory Application for Extension of Caveat
- Outcome
- Application allowed; caveat extended subject to conditions.
- Legal Topics
- Caveats, Land Registration, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njau Gatehi
Applicant
Miriam Wangari Njau
Respondent
Procedural Posture
Originating Summons / Interlocutory Application for Extension of Caveat
Legal Issues
- 1 Whether the caveat lodged by the applicant over LR 209/90/13 should be extended pending determination of the main suit.
- 2 Whether the applicant is entitled to interim protection of his interest in the property given the absence of opposition from the respondent.
- 3 Whether an undertaking in damages is necessary for the extension of the caveat.
Ratio Decidendi
The court found that the applicant, having constructed a valuable business on the suit property with the respondent's consent and in the absence of any opposition from the respondent, had established a prima facie case for the extension of the caveat. The court held that the caveat should remain in place to preserve the applicant's interest pending the determination of the main suit or for a period not exceeding twelve months, whichever is earlier. The extension was conditional upon the applicant providing a security undertaking in the form of a KES 5 million insurance bond or bank guarantee within thirty days. The court emphasized the need to maintain the status quo to prevent...
Court Disposition
Application allowed; caveat extended subject to conditions.
Orders
- The caveat registered by the applicant over LR 209/90/13 (IR95328) shall remain on the register until determination of the originating summons or not later than twelve months, whichever is earlier.
- The applicant shall file a security undertaking in the sum of KES 5 million by insurance bond or bank guarantee within thirty days.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 2193 of 2007
1. Land and Environmental Law Division
2. Subject of main suit:- i. Originating summons – land
ii. Registrars of Titles notice to remove caveat LR209/90/13 (IR95328)
iii) Plaintiff 1st born son of respondent
Erected hotel and business lodgings in 1984 on respondent land value Ksh.10m
iv. Lodged caveat in 2006
3. Application 9 October 2007
i) Application to extend caveat – whereby notice given to have it removed by Registrar of titles
ii) No respondent from respondent
4. Held: Caveat extended for 45 days.
5. Case law - Nil
6. Advocate:
B.A. Njugi for Njugi B.G. & Co. Advocates for the plaintiff/applicant-present/absent
Miriam Wangai – The defendant/ respondent in person -present /absent
JOHN NJAU GATEHI ……………....……………………. APPLICANT
VERSUS
MIRIAM WANGARI NJAU …………………………… RESPONDENT
RULING
1: BACKGROUND TO APPLICATION CHAMBER SUMMONS 9 OCTOBER 2007 SEEKING COURTS ORDERS TO LEAVE CAVEAT REGISTERED AGAINST LAND PARCELS LR 209/90/13 (LR95328)
1. There relationship between John Njau Gatehi the plaintiff applicant herein and Miriam Wangari Njau the defendant/ respondent herein is that of son and mother. The plaintiff is the first born son.
2. In 1984, the plaintiff constructed a hotel/lodge on the ancestral land that is registered in the defendant/respondents name being LR 209/90/13 (IR 95328). The said business is now valued a about Ksh.10 million according to the plaintiff.
3. Sometime in 2006 the said plaintiff acting out of fear, and or possible rumours was that his siblings intended to take the land away and or mortgage the same. This would be a great threat to the statutory of his lodgings. He filed a caveat against the said property.
4. On 2 October 2007 he received a notice from the Registrar of title to that this caveat will be removed within 45 days.
5. The said respondent had given the plaintiff consent to operate the hotel. If the caveat is renounced the original suit land would be in jeopardy.
6. The respondent failed to attend court nor file any affidavit in opposition of the application
7. The plaintiff is prepared to give an undertaking in damages.
II: Held
8. I hold , in absence of no reply to this application that the Registrar of title for land parcel LR 209/90/13 (IR95328) reflect the caveat of the said plaintiffs.
9. That the said caveat accordingly do remain on the register till the determination of the originating summons or not later that 12 months, what ever is first. The security undertaking of Kenya shillings 5 million insurance bond or Bank guarantee letter be filed by the applicant within 30 days.
10. The main suit be accordingly set down for hearing after compliance of order XXX VI r 8a, 12 Civil Procedures Rules.
Dated this 24th day of October 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
B.A. Njugi for Njugi B.G. & Co. Advocates for the plaintiff
Miriam Wangai – The defendant/ respondent in person - absent