[2009] KEHC 3368 (KLR)
The court found that although the suit was dismissed and an application to set aside the dismissal was also dismissed, the Plaintiff has filed a notice of appeal against the dismissal order. The notice of appeal has neither been withdrawn nor struck out. As a result, the court held that the suit has not been...
Source-derived case information.
- Citation
- [2009] KEHC 3368 (KLR)
- Parties
- Appellant: Julius Muchira Nguu; Defendant: Elizabeth Muthoni; Defendant: Moses Wamwati Muriuki (Deceased); Defendant: Chubi Nguu; Defendant: James Maina
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 90 of 1987
- Procedural Posture
- Civil Case / Ruling on Motion to Lift Cautions
- Outcome
- motion dismissed with costs to the respondent/plaintiff
- Judges
- JK Sergon
- Legal Topics
- Cautions on Land, Registered Land Act, Locus Standi, Appeals and Stay, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Muchira Nguu
Appellant
Elizabeth Muthoni
Defendant
Moses Wamwati Muriuki (Deceased)
Defendant
Chubi Nguu
Defendant
James Maina
Defendant
Procedural Posture
Civil Case / Ruling on Motion to Lift Cautions
Legal Issues
- 1 Whether the cautions lodged by the Plaintiff over the suit parcels should be lifted following the dismissal of the suit.
- 2 Whether the pendency of a notice of appeal prevents the lifting of cautions.
- 3 Whether the Applicant has locus standi to seek the removal of the cautions.
Ratio Decidendi
The court found that although the suit was dismissed and an application to set aside the dismissal was also dismissed, the Plaintiff has filed a notice of appeal against the dismissal order. The notice of appeal has neither been withdrawn nor struck out. As a result, the court held that the suit has not been effectually concluded due to the pendency of the appeal process, as signaled by the notice of appeal. Since the cautions were to remain until the suit is heard and determined, and the suit is still pending in light of the notice of appeal, there is no merit in the application to lift the cautions. The motion was therefore dismissed with costs to the Respondent/Plaintiff.
Court Disposition
motion dismissed with costs to the respondent/plaintiff
Orders
- The motion to lift the cautions is dismissed.
- Costs awarded to the Respondent/Plaintiff.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Case 90 of 1987
JULIUS MUCHIRA NGUU………........…… APPELLANT
Versus
ELIZABETH MUTHONI …..….……….... 1st DEFENDANT
MOSES WAMWATI MURIUKI (DCD).. 2ND DEFENDANT
CHUBI NGUU…………..………………..3RD DEFENDANT
JAMES MAINA……………………………4th DEFENDANT
RULING
Pursuant to the provisions of S. 133(1) of the Registered Land Act, the 4th Defendant took out the motion dated 14th November 2008 in which he applied for the cautions lodged by the Plaintiff over the parcel of land known as Inoi/Kerugoya/798 – 802 to be lifted. The motion is supported by the affidavit of James Maina sworn on 14th November 2008. The Plaintiff opposed the motion by filing a replying affidavit he swore on 29th January 2009.
When the motion came up for interpartes hearing Miss Thungu, learned advocate, for Mr. James Maina, the Applicant herein, urged this court to grant the orders. She pointed out that the cautions were lodged on 19th March 1987 to last until this suit is heard and determined. It is said the suit has since then been dismissed hence the cautions should be removed. Mr. Mahan, learned advocate for the Plaintiff urged this court to dismiss the motion because the suit is still pending , in that the Plaintiff has filed a notice of Appeal against the dismissal order hence the suit is not yet concluded. It is also argued that the Applicant has no locus standi to file the application.
I have considered the oral arguments presented by learned advocates. I have also considered the material placed before me. It is not in dispute that the cautions complained of were registered on 19th March 1987. The same were to remain until this suit is heard and determined. This suit was dismissed on 29th June 2001. An application to set aside the dismissal order was also dismissed on 22nd October 2008. The Applicant has filed a notice of appeal in which he intends to challenge the dismissal order in the court of Appeal. Miss Thungu has urged this court to find that the Plaintiff has not filed the substantive appeal hence there is no appeal. There is no doubt the Applicant has filed a notice of appeal. That notice has not been withdrawn nor struck out. In such a case I find that this suit has not been effectually concluded in view of the pendancy of the appeal courtesy of the notice of Appeal. Since the Pendancy of the caution is dependent on the existence of this suit, then there is no merit in the motion. The same is ordered dismissed with costs to the Respondent/Plaintiff.
Dated and delivered this 29th day of July 2009.
J.K. SERGON
JUDGE
In open court in the presence of Mr. Nderi H/B
Mahan for Respondent.
N/A Thungu for Applicant.
J.K. SERGON
JUDGE