[2011] KEHC 1285 (KLR)
The court found that the restriction registered against L.R. NO. MUTIRA/KAGUYU/1636 was expressly intended to subsist only until the hearing and determination of the present suit. Since the suit was heard and determined on 23rd February 2009, and there was no evidence of an appeal, the purpose for which the...
Source-derived case information.
- Citation
- [2011] KEHC 1285 (KLR)
- Parties
- Plaintiff: Joseph Njiraini Muruga; Defendant: Mary Wamwitha Kiai
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 172 of 1996
- Procedural Posture
- Civil Case / Ruling on Post Judgment Motion for Removal of Restriction
- Outcome
- Motion allowed; restriction to be removed; no order as to costs.
- Judges
- JK Sergon
- Legal Topics
- Removal of Restriction, Registered Land Act, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Njiraini Muruga
Plaintiff
Mary Wamwitha Kiai
Defendant
Procedural Posture
Civil Case / Ruling on Post Judgment Motion for Removal of Restriction
Legal Issues
- 1 Whether the restriction registered against L.R. NO. MUTIRA/KAGUYU/1636 should be removed following the determination of the suit.
- 2 Whether the restriction was intended to subsist only until the suit was heard and determined.
Ratio Decidendi
The court found that the restriction registered against L.R. NO. MUTIRA/KAGUYU/1636 was expressly intended to subsist only until the hearing and determination of the present suit. Since the suit was heard and determined on 23rd February 2009, and there was no evidence of an appeal, the purpose for which the restriction was registered had been fulfilled. The continued existence of the restriction was therefore unjustified. The court allowed the defendant's motion for removal of the restriction, holding that the restriction should be lifted as its legal basis had ceased to exist.
Court Disposition
Motion allowed; restriction to be removed; no order as to costs.
Orders
- The restriction registered against L.R. NO. MUTIRA/KAGUYU/1636 is to be removed forthwith.
- No order as to costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL CASE NO. 172 OF 1996
JOSEPH NJIRAINI MURUGA…...……............….........................PLAINTIFF
VERSUS
MARY WAMWITHA KIAI........................................................DEFENDANT
RULING
Pursuant to the provisions ofSection 138 (2) of the Registered Land Act, Mary Wamwitha Kiai, the Defendant herein, took out the Motion dated 30th November 2009, in which she applied for the removal of the restriction order lodged against L.R. NO. MUTIRA/KAGUYU/1636 being the suit land herein. The Defendant swore an affidavit she filed in support of the Motion. The Motion proceeded for hearing exparte when it became apparent that Joseph Njiraini Muruga had failed to file a response despite having been served with the Motion.
The main ground raised and argued in support of the Motion is that the restriction registered against L.R. NO. MUTIRA/KAGUYU/1636 was to subsist until this suit is heard and determined. It is argued that since this suit has now been determined, the restriction should be removed. I have looked at the copy of the register relating to the suit land and it is clear that a restriction was registered on 10. 03. 1988 pending the hearing and determination of a case of transfer. Though the case number is not indicated, I can infer that the suit referred in the register is this case because the same is seeking for the determination of ownership and transfer of L.R. NO. MUTIRA/KAGUYU/1636. This suit was heard and determined on 23rd February 2009 in which Mr. Justice Makhandia dismissed the suit. There is no evidence on record to show that the Plaintiff has appealed. For the above reasons, I am convinced the Motion has merit. The restriction was to subsist until this suit is determined. Since the suit has been heard and determined, the subsistence of the restriction is no longer tenable. The Motion dated 30th November 2009 is allowed as prayed with no order as to costs.
Dated and delivered at Nyeri this 23rd day of September 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mary Wamwitha Kiai.