[2011] KEHC 818 (KLR)
The court found that the suit had already been dismissed as res judicata and that the orders previously granted did not mention or relate to any caution registered against the subject land titles. Since the existence and removal of the caution were not addressed in the dismissed suit or in the orders of 9th...
Source-derived case information.
- Citation
- [2011] KEHC 818 (KLR)
- Parties
- Plaintiff: Kiptoo Arap Chelule; Defendant: Jerop Taprandich Ngetich; Defendant: Selly Jepkirong Ngetich; Defendant: Christopher Bett; Defendant: Samuel Kiplimo Bett; Defendant: Ruth Jepkoech Ngetich; Defendant: John Kipkemei Cheptarbei; Defendant: P.K. Sibuchi, District Lands Registrar
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 200 of 2009
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Orders
- Outcome
- application dismissed
- Legal Topics
- Res Judicata, Interlocutory Injunctions, Land Cautions, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiptoo Arap Chelule
Plaintiff
Jerop Taprandich Ngetich
Defendant
Selly Jepkirong Ngetich
Defendant
Christopher Bett
Defendant
Samuel Kiplimo Bett
Defendant
Ruth Jepkoech Ngetich
Defendant
John Kipkemei Cheptarbei
Defendant
P.K. Sibuchi, District Lands Registrar
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Orders
Legal Issues
- 1 Whether the court can set aside restraining orders granted on 9th December, 2009 after the main suit was dismissed as res judicata.
- 2 Whether the caution registered against the subject land titles can be removed through the present application.
Ratio Decidendi
The court found that the suit had already been dismissed as res judicata and that the orders previously granted did not mention or relate to any caution registered against the subject land titles. Since the existence and removal of the caution were not addressed in the dismissed suit or in the orders of 9th December, 2009, the present application to set aside those orders could not be entertained. The applicants were advised to seek appropriate remedies through a proper application. The application was therefore dismissed for lack of merit.
Court Disposition
application dismissed
Orders
- The application to set aside the orders of 9th December, 2009 is dismissed.
- There will be no orders as to costs.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
CIVIL SUIT NO. 200 OF 2009
KIPTOO ARAP CHELULE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
VERSUS
JEROP TAPRANDICH NGETICH::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::1ST DEFENDANT
SELLY JEPKIRONG NGETICH::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::2ND DEFENDANT
CHRISTOPHER BETT::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::3RD DEFENDANT
SAMUEL KIPLIMO BETT:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::4TH DEFENDANT
RUTH JEPKOECH NGETICH:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::5TH DEFENANT
JOHN KIPKEMEI CHEPTARBEI::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::6TH DEFENDANT
P.K. SIBUCHI,
DISTRICT LANDS REGISTRAR:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::7TH DEFENDANT
RULING
This application expressed to be made under sections 3, 3A of the Civil Procedure Act, Order 51 Rule 1 of the civil Procedure rules and
Section 133 (1) of the Registered Land Act, seeks one main order of the Court, that the Orders granted by this court on 9th December, 2009 be set aside.The application is by the defendants.
The main reasons for the application are that on 9th December, 2009, the respondent/plaintiff sought and obtained restraining orders against the applicants in respect of LR. No.s Nandi/Lessos/559, 660, 661, 662 and 663. However, on 8th February, 2011 the plaintiff’s suit was dismissed for being res judicata. According to the applicants, that decision confirmed that they are the rightful owners of the said titles, yet a caution the respondent lodged against the titles still subsists and can only be removed by the Land Registrar if there is an order to that effect.
The respondent’s counsel filed Grounds of Opposition contending, in the main, that there is no suit upon which the order sought may be granted. Counsel did not however file written submissions in response to the submissions filed on behalf of the defendant by their advocates.
The submissions filed on behalf of the defendant were an elaboration of the grounds of the application and the averments in the supporting affidavit.
I have considered the application the supporting affidavit and the submissions of counsel. Having done so, I take the following view of the matter. The preliminary objection which guillotined the plaintiff’s suit was predicated on one main ground namely that the respondent’s suit was res judicata. The ruling did not mention any caution. The written statement of defence also made no reference to any caution. I have also perused the respondent’s application for interim orders of injunction. There was no mention of a caution. Even the order which was subsequently issued on 9th December, 2009 made no reference to a caution.
So, if any caution was ever registered against the subject titles, the same was not so registered pursuant to any orders made in the dismissed suit. In the premise, the applicants’ claim is a claim which cannot be entertained in this suit. They are at liberty to appropriately move the court for orders removing the caution.
This application, although heard exparte, is without merit and is dismissed. There will be no orders at to costs.
Orders accordingly.
DATED AND DELIVERED AT ELDORET
THIS 30TH DAY OF NOVEMBER, 2011
F. AZANGALALA
JUDGE
Read and delivered in the presence of:
Ms. Oduor H/B for Ms. Mugure for the applicant.
F. AZANGALALA
JUDGE
30TH NOVEMBER, 2011