[2022] KEELC 13653 (KLR)
The court found that the plaintiff's suit had been dismissed and the defendant's counterclaim allowed by a judgment dated March 4, 2016, confirming the defendant as the registered proprietor of the suit property. There was no evidence of any pending litigation or valid claim by the respondent. The caution registered...
Source-derived case information.
- Citation
- [2022] KEELC 13653 (KLR)
- Parties
- Plaintiff: Albert Kanake Kariuki; Defendant: Winnie Karimi Njuguna
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 482 of 2009
- Procedural Posture
- Environment and Land Case / Ruling on Post Judgment Application
- Outcome
- Application allowed with costs to the applicant.
- Judges
- LN Mbugua
- Legal Topics
- Caution Removal, Land Registration, Proprietary Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Kanake Kariuki
Plaintiff
Winnie Karimi Njuguna
Defendant
Procedural Posture
Environment and Land Case / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the caution registered by the respondent on the suit property should be cancelled following the dismissal of the plaintiff's suit and the allowance of the defendant's counterclaim.
- 2 Whether the applicant is entitled to costs of the application.
Ratio Decidendi
The court found that the plaintiff's suit had been dismissed and the defendant's counterclaim allowed by a judgment dated March 4, 2016, confirming the defendant as the registered proprietor of the suit property. There was no evidence of any pending litigation or valid claim by the respondent. The caution registered by the respondent constituted an unjustified encumbrance on the applicant's property rights. The orders sought were necessary to give effect to the court's earlier judgment, particularly the relief granted in the defendant's counterclaim. The application was therefore merited and allowed with costs to the applicant.
Court Disposition
Application allowed with costs to the applicant.
Orders
- The change of advocates from M/s Morris Njage & Co Advocates to Messrs Ano Advocates for the defendant is acknowledged and allowed.
- The land registrar is ordered to forthwith cancel the caution registered by the respondent as entry no. 7 on the green card dated November 28, 2008 for parcel NAIROBI/BLOCK/97/1641.
Full Case Text
Judgment text and source record
21 paragraphs
Kariuki v Njuguna (Environment & Land Case 482 of 2009) [2022] KEELC 13653 (KLR) (13 October 2022) (Ruling)
Neutral citation: [2022] KEELC 13653 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case 482 of 2009
LN Mbugua, J
October 13, 2022
Between
Albert Kanake Kariuki
Plaintiff
and
Winnie Karimi Njuguna
Defendant
Ruling
1. The application before me is dated April 8, 2022 where the defendant seeks the following orders:“a.Spent.b.That this honorable court be pleased to acknowledge and allow the change of advocates in this suit from the firm off M/s Morris Njage & Co Advocates To Messr Ano Advocates who have been instructed by the applicant to take up this matter and prosecute this application on her behalf.c.That this honorable court be pleased to order the cancellation of the caution filed and maintained by the respondent as entry no 7 on the green card dated November 28, 2008 for parcel of land registered as LEASEHOLD NAIROBI/BLOCK/97/1641 forthwith.d.That this honorable court be pleased to order the land registrar to forthwith cancel the caution by the respondent dated the November 28, 2008 being entry no 7 on green card for parcel of land registered as NAIROBI/BLOCK/97/1641. e.That the respondent be condemned to pay the costs of this application.”
2. The application is premised on the grounds thata.At the material times, before during and after the determination of this suit, the applicant was and still is the registered proprietor of the suit parcel NAIROBI/LOCK/97/1641. b.That at the conclusion of the suit and by decree of this court dated March 4, 2016, the respondent’s claim to the suit land were dismissed with costs.c.That the caution by the respondent is a vexatious encumbrance on the applicant’s property.
3. The applicant has also sworn a supporting affidavit where she has reiterated the averments set out in the application.
4. The plaintiff allegedly filed grounds of opposition dated May 30, 2022, but in reality, nothing was filed by this party in opposition to the application, not even submissions as directed by the court on July 19, 2022 as no such documents can be found in the digital platform (CTS) or in the physical file.
5. I have considered the application and the submissions of the applicant. I find that judgment herein was entered on March 4, 2016 in which plaintiffs suit was dismissed while defendant’s counter claim was allowed. There is no evidence of any pending litigation. It follows that the orders sought are meant to give effect to the judgment of this court particularly in prayer “b” of the defendant’s counter claim.
6. I thus find that the application dated April 8, 2022 is merited. The same is allowed with costs to the applicant.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF OCTOBER, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Nyaga holding brief for Mr. Kurauka for the PlaintiffMusyoka for the Defendant/ApplicantCourt assistant: Eddel/Joan