[2023] KEELC 19235 (KLR)
The court found that the applicant failed to provide evidence that the cases under which the inhibition orders were imposed had been finalized or that the destruction of the files constituted the occurrence of an event contemplated by the Land Registration Act for lifting the inhibition. The applicant did not obtain...
Source-derived case information.
- Citation
- [2023] KEELC 19235 (KLR)
- Parties
- Applicant: Mary Kanana (Suing as the legal representative of the Estate of Joseph Gikunda M'Mugambi – Deceased); Respondent: The Honourable Attorney General; Respondent: Land Registrar Meru Central
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E020 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Remove Inhibition
- Outcome
- application dismissed
- Judges
- CK Nzili
- Legal Topics
- Removal of Inhibition, Land Registration, Succession and Estates, Court File Destruction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Kanana (Suing as the legal representative of the Estate of Joseph Gikunda M'Mugambi – Deceased)
Applicant
The Honourable Attorney General
Respondent
Land Registrar Meru Central
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Remove Inhibition
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for the removal of the inhibition on L R No Abothuguchi/Katheri/159.
- 2 Whether the destruction of court files constitutes an event warranting the lifting of the inhibition under the Land Registration Act.
- 3 Whether the applicant has demonstrated that the cases under which the inhibition was imposed were finalized.
Ratio Decidendi
The court found that the applicant failed to provide evidence that the cases under which the inhibition orders were imposed had been finalized or that the destruction of the files constituted the occurrence of an event contemplated by the Land Registration Act for lifting the inhibition. The applicant did not obtain a certificate from the Deputy Registrar confirming the destruction of the relevant files, nor did she demonstrate that she was a party to those cases or that the outcome of the cases warranted removal of the inhibition. The court held that the mere destruction of files, without evidence of finalization or occurrence of a relevant event, is insufficient to justify the removal...
Court Disposition
application dismissed
Orders
- The application dated May 25, 2023 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
Kanana (Suing as the legal representative of the Estate of Joseph Gikunda M'Mugambi – Deceased) v Attorney General & another (Environment and Land Miscellaneous Application E020 of 2023) [2023] KEELC 19235 (KLR) (26 July 2023) (Ruling)
Neutral citation: [2023] KEELC 19235 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Miscellaneous Application E020 of 2023
CK Nzili, J
July 26, 2023
Between
Mary Kanana (Suing as the legal representative of the Estate of Joseph Gikunda M'Mugambi – Deceased)
Applicant
and
The Honourable Attorney General
1st Respondent
Land Registrar Meru Central
2nd Respondent
Ruling
1. By an application dated May 25, 2023, the court is asked to order the removal of an inhibition on L R No Abothuguchi/Katheri/159, issued in Meru RMCC No 39 of 1998 and Meru L DT No. 2 of 1995, which files were finalized and the order once granted to be served upon the respondents for compliance.
2. The application is based on the grounds on its face application and an affidavit sworn by Mary Kanana on May 25, 2023. As the legal representative of the estate of the late Joseph Gikunda M'Mugambi, the registered owner of the suit land, the applicant averred the grant cannot be confirmed by the court in Githongo PM Succession Case No E109 of 2021, due to the pendency of the inhibition orders. She has attached copies of the letters of administration, a copy of the summons for letters of the grant, an official search, a copy of the gazette notice for disposal of files, and a letter for leave and certificate of destruction; all marked as annexures No M.K. 1, 2, 3, 4 & 5(a) & (b) respectively.
3. Section 70 & 71 of the Land Registration Act grants the land registrar powers to register a restriction against a title to land to prevent any fraud or for a sufficient reason. A court is also mandated to order the imposition or lifting of such a restriction or inhibition until or after an occurrence of an event.
4. This file contains the restrictions imposed in Meru R M S Civil Suit No 39 of 1998 and L D T No 2 of 2005. The applicant says the court files were destroyed through a gazette notice dated February 11, 2019. The gazette notice covers HCI 1968, 1994, and H C A 1968 – 1994. The leave issued to destroy files did not cover files from the Chief Magistrate's Court. It was not a blanket leave under the Records Disposal (Court) Rules Cap 14 Laws of Kenya.
5. The Deputy Registrar of this court has not issued the applicant a certificate confirming that the two files under which the restrictions were imposed were destroyed during the exercise. There is no indication from the applicant if she was a party to those files and whether the two cases were finalized.
6. Further, there is no evidence attached by the applicant that the occurrence of the event contemplated under Sections 68, 70 & 78 of the Land Registration Act took place. The restrictions do not state that the disposal of the file was the occurrence. There must have been an outcome in the files. In this case, the applicant should have asked the Deputy Registrar if the file register exists so that she may establish the results in the two files. The upshot is that the application herein lacks merits and is due for dismissal with no order as to costs.
DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 26TH DAY OF JULY 2023IN PRESENCE OFC.A JOHN PAULMISS KOECH FOR MWITI FOR THE APPLICANTMBAIKYATTA FOR 1ST & 2ND RESPONDENTHON. CK NZILIELC JUDGE