[2024] KEHC 5780 (KLR)
The court found that the prohibitory order registered against parcel Ngariama/Nyangeni/906 was only meant to subsist until the determination of the suit. Since the substantive application for certiorari was never prosecuted and the applicant/respondent died, the court had already marked the file as closed and...
Source-derived case information.
- Citation
- [2024] KEHC 5780 (KLR)
- Parties
- Applicant: Njiru Kinyitia; Respondent: David Kathuri Njiru; Respondent: Haniel Gichobi Njiru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 58 of 2001
- Procedural Posture
- Miscellaneous Civil Application / Ruling on Notice of Motion to Lift Prohibitory Orders
- Outcome
- application allowed
- Judges
- LM Njuguna
- Legal Topics
- Prohibitory Orders, Land Disputes Tribunal, Removal of Inhibition, Finality of Suit, Execution of Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njiru Kinyitia
Applicant
David Kathuri Njiru
Respondent
Haniel Gichobi Njiru
Respondent
Procedural Posture
Miscellaneous Civil Application / Ruling on Notice of Motion to Lift Prohibitory Orders
Legal Issues
- 1 Whether the prohibitory order registered against parcel Ngariama/Nyangeni/906 should be lifted after conclusion of the suit.
- 2 Whether the continued existence of the inhibition is legally justified after the certiorari application was spent and the file closed.
Ratio Decidendi
The court found that the prohibitory order registered against parcel Ngariama/Nyangeni/906 was only meant to subsist until the determination of the suit. Since the substantive application for certiorari was never prosecuted and the applicant/respondent died, the court had already marked the file as closed and declared the application spent. Therefore, the continued existence of the prohibitory order serves no legal purpose. In the interest of justice and to allow the 2nd respondent/applicant to deal with his property, the court held that the inhibition should be lifted.
Court Disposition
application allowed
Orders
- The prohibitory order entered against parcel number Ngariama/Nyangeni/906 on 13th July 2001 is hereby lifted.
Full Case Text
Judgment text and source record
25 paragraphs
Kinyitia v Njiru & another (Miscellaneous Civil Application 58 of 2001) [2024] KEHC 5780 (KLR) (15 May 2024) (Ruling)
Neutral citation: [2024] KEHC 5780 (KLR)
Republic of Kenya
In the High Court at Embu
Miscellaneous Civil Application 58 of 2001
LM Njuguna, J
May 15, 2024
IN THE MATTER OF AN APPLICATION BY NJIRU KINYITIA FOR AN ORDER OF CERTIORARI AND IN THE MATTER OF THE DECISION OF THE GICHUGU LAND DISPUTES TRIBUNAL DATED 11 TH MAY 1999 AND FILED IN SENIOR RESIDENT MAGISTRATE IN KERUGOYA AS LAND DISPUTES TRIBUNAL CASE NO. 29 OF 1999 AS READ TO THE PARTIES ON 16 TH JULY 1999
Between
Njiru Kinyitia
Applicant
and
David Kathuri Njiru
1st Respondent
Haniel Gichobi Njiru
2nd Respondent
Ruling
1. For determination is the notice of motion dated 20th July 2023 through which the applicants are seeking the following orders:1. Spent; and2. That the honourable court be pleased to order the lifting of all the prohibitory orders entered against the 2nd respondent/applicant’s property parcel number Ngariama/Nyangeni/906 on 13th July 2001.
2. The application is premised on the grounds that the inhibition order registered against the said property was only meant to last until determination of the suit and as it is, the suit is long concluded. That the inhibition no longer has legal basis and it should be removed in the interest of justice. In the supporting affidavit sworn by the 2nd respondent/applicant, he stated that the case on which the inhibition was dependent, was determined with finality and an order to inhibit the property pending litigation has since been spent. That the 2nd respondent/applicant needs money for medical expenses but he is not able to sell the said land in order to raise the money.
3. The applicant/respondent filed chamber summons dated 20th June 2001 seeking leave to apply for an order of certiorari out of time. The application was allowed and the court issued an order dated 03rd July 2001, inter alia, prohibiting land parcel numbers Ngariama/Nyangeni/905 and Ngariama/Nyangeni/906. The substantive application seeking certiorari orders was also filed but was never prosecuted. The 2nd respondent/applicant filed a notice of motion dated 15th November 2019 seeking orders that the orders encumbering land parcel Ngariama/Nyangeni/906 be vacated since the applicant respondent died before prosecuting his application. The court allowed this application through its order issued on 09th August 2021, on the basis that the application had been spent and the file was marked as closed.
4. The issue for determination is whether the order sought should be granted.
5. When the 2nd respondent/applicant moved the court stating that the applicant respondent had died, the court allowed the application for the reason that the application has been spent and the file was marked as closed. However, the prohibitory orders over parcel numbers Ngariama/Nyangeni/905 and Ngariama/Nyangeni/906 are still in force. The certiorari application having been determined through this court’s order dated 09th August 2021, the prohibitory order should be lifted since the encumbrance no longer served a purpose.
6. Therefore, in the interest of justice, I find that the application has merit. Prayer 2 of the same is hereby allowed.
7. It is so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 15TH DAY OF MAY, 2024. L. NJUGUNAJUDGE