[2015] KEELC 138 (KLR)
Despite the application being undefended, the court found that the applicant failed to disclose material concerns raised by the Land Registrar regarding the validity of the title deed to the suit property. The court noted that the Land Registrar had previously summoned the applicant to address the issue of the...
Source-derived case information.
- Citation
- [2015] KEELC 138 (KLR)
- Parties
- Applicant: Kasturial Palimal Aggarwal; Respondent: Christopher Ndiritu Kinyua
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 84 of 2015
- Procedural Posture
- Civil Case / Ruling on Notice of Motion to Enforce Eviction Judgment
- Outcome
- Ruling deferred; summons to Land Registrar ordered.
- Judges
- L Waithaka
- Legal Topics
- Eviction Proceedings, Title Deed Disputes, Land Ownership, Enforcement of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kasturial Palimal Aggarwal
Applicant
Christopher Ndiritu Kinyua
Respondent
Procedural Posture
Civil Case / Ruling on Notice of Motion to Enforce Eviction Judgment
Legal Issues
- 1 Whether the applicant is entitled to enforcement of the eviction order against the respondent from the suit property.
- 2 Whether the applicant failed to disclose material facts regarding the validity of the title deed to the suit property.
- 3 Whether the concerns raised by the Land Registrar regarding the correct parcel of land should affect enforcement of the judgment.
Ratio Decidendi
Despite the application being undefended, the court found that the applicant failed to disclose material concerns raised by the Land Registrar regarding the validity of the title deed to the suit property. The court noted that the Land Registrar had previously summoned the applicant to address the issue of the correct parcel, and a subsequent letter indicated that the title deed held by the applicant may have been issued in error. These concerns were not brought to the attention of the trial judge during the original proceedings, nor disclosed in the current application. In the interest of justice and pursuant to its inherent powers, the court deferred delivery of the ruling on the...
Court Disposition
Ruling deferred; summons to Land Registrar ordered.
Orders
- Summons to be served forthwith on the Land Registrar Laikipia to attend court and clarify the circumstances surrounding the issuance of the letter dated 6th January, 2015.
- Matter to be mentioned on 19th November, 2015 to confirm service on the Land Registrar and for further directions.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NYERI
ELC CIVIL CASE NO. 84 OF 2015
KASTURIAL PALIMAL AGGARWAL............................................................ PLAINTIFF/APPLICANT
-VERSUS-
CHRISTOPHER NDIRITU KINYUA..................................................... DEFENDANT/RESPONDENT
RULING
1. The notice of motion dated 15th January, 2015 seeks to enforce the judgment of this court (read the Environment and Land Court delivered on 29th October 10, 2014 in this matter). Vide that judgment, Ombwayo J., allowed the applicant’s suit for eviction of the respondent from L.R NO. Nanyuki/Marura/Block 8/1227 (hereinafter referred to as the suit property).
2. The application is premised on the ground that the respondent has resisted all attempts to have him vacate the suit property.
3. To ensure that peace prevails during the eviction exercise, the applicant prays that the exercise be supervised by the Officer Commanding Nanyuki Police Station.
4. When the matter came up for hearing on 10th June 2015, this court ordered that the respondent be personally served with notice to show cause why he should not be evicted. The application was listed for hearing on 1st July, 2015.
5. On 1st July, 2015 counsel for applicant informed the court that the respondent was served through his wife but had not attended court to show cause why he should not be evicted from the suit property. There being no response to the application and the notice to show cause, counsel for the applicant urged the court to allow the application as prayed.
6. Even though the respondent did not file a reply to the current application and the notice to show cause, upon perusal of the court record, I came accross a letter by the respondent to the court dated 23rd March, 2014 where he contends that the decree issued in favour of the applicant is inexcutable for the reason that it concerns a different plot.
7. In support of the respondent’s contention, reliance is made on a letter from the Land Registrar Laikipia dated 6th January, 2015. In that letter the Land Registrar addressed the applicant as follows:-
“Ref: Nanyuki Marura Block 8/1227 and 618(Nturukuma):
The above matter refers.
This office has established that the title deed was issued to you erroneusly.
You should have been issued with title deed no. 618. You are hereby summoned to surrender title no. Nanyuki/Marura/ Block 8/1227 and you be issued with title No. Nanyuki/Marura/Block 8/618 which is the rightful parcel for you as per the records held in this office....”
8. That letter was addressed to the applicant and copied to the court.
9. From the record, I also note that before the applicant filed the current suit, the Land Registrar had raised the same issue with the applicant. See the Registrar’s letter dated 15th November, 2011 wherein he had addressed the applicant as follows:-
“by powers conferred upon me under Section 8(b) of the RLA Cap 300 laws of Kenya, you are hereby summoned to appear before the undersigned within 30 days from the date of this letter and that should be 16th December, 2011.
You should also bring with you the above mentioned title deed issued on 20/12/2006 and any other document of the said land, and failure to appear a decision will be made your presence notwithstanding.”
10. It appears that it is the letter that prompted the filing of this suit.
11. Upon reading the judgment on which the current application is premised, I note the concerns raised by the Land Registrar concerning the suit property were not brought to the attention of the trial judge. The applicant has also failed to disclose such serious concerns regarding the title deed he holds in the current application.
12. Despite the suit and the application being undefended, Section 1A of the Civil Procedure Act puts an obligation on the applicant and/or his advocate to disclose all information that can assist the court in making a just determination on the issues brought before it.
13. In the circumstances of this case, despite being of the view that the procedure used by the respondent to challenge the orders issued against him is unknown in law, having read and considered the issues raised by the Registrar concerning ownership of the property, pursuant to the powers conferred on me under Section 3A of the Civil Procedure Act, I defer delivery of the ruling in respect of this application and order that summons be forthwith served on the Land Registrar Laikipia, to attend Court and shed light on the circumstances surrounding the issuance of the letter dated 6th January, 2015 despite existence of a court order to the effect that the suit property belongs to the applicant.
14. In the meantime, the matter shall be mentioned on 19th November, 2013 to confirm service on the Land Registrar and for further directions.
Dated, Signed and Delivered at Nyeri this 21st day of October, 2015.
L N WAITHAKA
JUDGE
In the presence of:
Ms Wambui h/b for Mr. Gichuki Mwangi for the plaintiff
N/A for the defendant
Court assistant - Lydia