[2017] KEELC 1278 (KLR)
The court found that the applicant failed to provide any evidence of the existence of a caution registered against the subject property. The Certificate of Lease annexed to the application did not show any caution in the encumbrance section, and no certificate of official search was provided. Without proof of the...
Source-derived case information.
- Citation
- [2017] KEELC 1278 (KLR)
- Parties
- Applicant: Joseph Munene; Respondent: Grace Wanjiru Kihika
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 156 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Lift Caution
- Outcome
- application dismissed
- Judges
- DO Ohungo
- Legal Topics
- Caution Registration, Land Ownership Disputes, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Munene
Applicant
Grace Wanjiru Kihika
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Lift Caution
Legal Issues
- 1 Whether there is evidence of a caution registered against Naivasha Municipality Block 2/201 by the respondent.
- 2 Whether the applicant is entitled to an order lifting the caution in the absence of proof of its existence.
Ratio Decidendi
The court found that the applicant failed to provide any evidence of the existence of a caution registered against the subject property. The Certificate of Lease annexed to the application did not show any caution in the encumbrance section, and no certificate of official search was provided. Without proof of the caution's existence or its registration by the respondent, the applicant did not establish a case for the orders sought. The application was therefore dismissed for lack of evidence.
Court Disposition
application dismissed
Orders
- Notice of Motion dated 19th May 2017 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
MISCELLANEOUS APPLICATION No. 156 OF 2017
JOSEPH MUNENE................................................APPLICANT
VERSUS
GRACE WANJIRU KIHIKA...............................RESPONDENT
RULING
(Application for an order lifting a caution; no evidence of existence of a caution placed before the court; application dismissed)
1. This ruling is in respect of Notice of Motion dated 19th May 2017. The application is brought under Order 51 rule 1 of the Civil Procedure Rules, 2010 and Sections 3A and 63(e) of the Civil Procedure Act. The applicant seeks the following orders:
1. THAT the honourable court be pleased to lift a caution placed on the applicant’s all (sic) parcel of land known as Naivasha Municipality Block 2/201.
2. THAT the cost (sic) of this application be provided for.
2. The application is supported by an affidavit sworn by the applicant wherein he deposes that he is the owner of the parcel of land known as Naivasha Municipality Block 2/201. A copy of a Certificate of Lease is annexed. The applicant further deposed that the respondent caused a caution to be registered on (Sic) the said parcel of land. That as a result, the applicant has been deprived of the right to own the property and is also unable to have any economic development on the land.
3. Though there was affidavit evidence that the respondent was served with the application, the respondent neither filed a response nor attended court at the inter parte hearing. Counsel for the applicant thus urged the court to allow the application.
4. I have considered the application, the affidavit in support and submissions of counsel. Though the applicant deposed that the respondent had caused a caution to be registered against the subject property, no evidence was placed before the court to prove existence of such a caution and registration thereof by the respondent or at the instance of the respondent. I have perused a copy of the Certificate of Lease which was annexed to the supporting affidavit and found no caution noted at the encumbrance section. No certificate of official search was annexed to prove existence of any caution.
5. In view of the foregoing, I am not persuaded that the applicant has made out a case to warrant granting the orders sought. Notice of Motion dated 19th May 2017 is dismissed. No order on costs.
Dated, signed and delivered in open court at Nakuru this 19th day of October 2017.
D. O. OHUNGO
JUDGE
In the presence of:
Mr. Simiyu for the applicant
No appearance for the respondent
Court Assistant: Gichaba