[2014] KEHC 6021 (KLR)
The court found that the application for removal of the caution was an abuse of the court process because the issue had already been determined in a prior judgment by Lady Justice Lesiit, which upheld the retention of the cautions on the suit properties. The applicant had not demonstrated that the prior judgment had...
Source-derived case information.
- Citation
- [2014] KEHC 6021 (KLR)
- Parties
- Applicant: Kariuki Wachira; Respondent: Esther Wanjiru Kariuki
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 96 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application
- Outcome
- application dismissed in part, allowed in part
- Judges
- FM Njoroge
- Legal Topics
- Removal of Caution, Trusts in Land, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kariuki Wachira
Applicant
Esther Wanjiru Kariuki
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to the removal of the caution lodged against land parcels Nyaki/Thuura/1645 and 1646.
- 2 Whether the application amounts to an abuse of the court process in light of the prior judgment upholding the cautions.
- 3 Whether the applicant is entitled to conduct his case in person or through an advocate.
Ratio Decidendi
The court found that the application for removal of the caution was an abuse of the court process because the issue had already been determined in a prior judgment by Lady Justice Lesiit, which upheld the retention of the cautions on the suit properties. The applicant had not demonstrated that the prior judgment had been set aside or appealed. Therefore, the court dismissed the prayer for removal of the caution. The court also allowed the applicant to act in person or appoint an advocate but clarified that this did not entitle him to appeal out of time. No costs were awarded.
Court Disposition
application dismissed in part, allowed in part
Orders
- Prayer 2 allowed: applicant may act in person or appoint an advocate.
- Prayer 3 dismissed: removal of caution refused as it is an abuse of court process.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CIVIL APPEAL NO 96 OF 2009
KARIUKI WACHIRA..........................................................APPLICANT
VERSUS
ESTHER WANJIRU KARIUKI......................................RESPONDENT
(Being an appeal against judgment and decree of Hon. W. K. Korir P. M. in Meru CMCC 820 of 2003)
R U L I N G
This application is dated 13th December, 2012.
During inter partes hearing of this application, Mr. Womache, Advocate for the applicant, told the court that the respondent had been duly served. He referred the court to an affidavit of service filed on 5. 3.2014. He submitted that since the application had not been opposed, it should be allowed with costs to the applicant
It is true that a certificate of service was filed and on 5. 3.2014. It is also true that the respondent did not come to court on 10. 3.2014 when the application was to be heard.
I, however, note that in the appellant's Memorandum of Appeal in Civil appeal No. 96 of 2009, the removal of the cautions lodged against parcel Nos. Nyaki/Thuura/1645 and 1646 was one of the grounds of appeal.
Hon. Lady Justice Lesiit, J, delivered a judgment in this appeal on 22nd March, 2012. She found that the appellants' suit had merit. The respondent in this suit was an appellant in that suit. The Hon. Lady Judge set aside the decree of the learned trial magistrate in its entirety. In substitution thereof, she entered judgment for the Appellants and declared that the respondent, the applicant herein, held the suit properties, which are registered in his name, in trust for himself, the appellants and other family members.
It has not been demonstrated that the applicant who was the respondent in HCCA No.96 of 2009 filed an appeal to the court of appeal and had the judgment of this court set aside.
This application sought orders:
1. That this Honourable court do certify this matter as urgent and be heard exparte in the first instance.
2. That the honourable court do allow the applicant to act in person or appoint an advocate.
3. That the honourable court be pleased to issue an order that the unlawful caution lodged/placed against land parcels No.Nyaki/Thuura/1645 (sic) be removed forthwith.
4. Costs in the cause.
Prayer one is spent.
Prayer 2 is allowed to the effect that the respondent is free to conduct his cases either by himself or through an advocate. However, in this case he should have proceeded to the court of appeal for further adjudication. The grant of this prayer does not entitle him to appeal out of time.
Prayer 3 is dismissed. It amounts to an abuse of the court process. The applicant had knowledge that this court had delivered a judgment which had upheld the retention of the cautions the applicant wants removed.
I ward no costs.
Delivered in Open Court at Meru this 10th day of March, 2014 in the presence of:
Cc. Mwonjaru
Womache for the Applicant
P. M. NJOROGE
JUDGE