[2014] KEHC 58 (KLR)
The court found that the applicant had already been declared entitled to the suit property by a previous decree and that the respondent's director's caution, placed in 2000, was the only obstacle to effecting the transfer. The respondent, despite being properly served by substituted service, failed to oppose the...
Source-derived case information.
- Citation
- [2014] KEHC 58 (KLR)
- Parties
- Applicant: Mageta Enterprises Ltd; Respondent: Tilak Company Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Claim 156 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion to Remove Caution
- Outcome
- Application allowed as prayed; caution to be removed.
- Judges
- DO Ohungo
- Legal Topics
- Adverse Possession, Removal of Caution, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mageta Enterprises Ltd
Applicant
Tilak Company Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion to Remove Caution
Legal Issues
- 1 Whether the caution placed by the respondent's director over the suit property should be removed to effectuate the court's decree in favour of the applicant.
- 2 Whether the respondent holds any superior interest justifying the maintenance of the caution over the suit property.
Ratio Decidendi
The court found that the applicant had already been declared entitled to the suit property by a previous decree and that the respondent's director's caution, placed in 2000, was the only obstacle to effecting the transfer. The respondent, despite being properly served by substituted service, failed to oppose the application. The court held that the cautioner had no superior interest and that the caution's continued existence frustrated the execution of the court's decree. Accordingly, the court allowed the application and ordered the removal of the caution to enable the transfer of the property to the applicant.
Court Disposition
Application allowed as prayed; caution to be removed.
Orders
- The caution placed by Zaina Mukami Chelang'a over Nakuru/Municipality Block 11/195 is forthwith removed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL SUIT NO. 156 OF 2008
MAGETA ENTERPRISES LTD..........................APPLICANT
VERSUS
TILAK COMPANY LIMITED..........................RESPONDENT
RULING
The applicant, Mageta Enterprises Ltd, brought the notice of motion dated 25th February, 2014 praying that the caution placed by the director of the respondent, Zaina Mukami Chelang'a, over the parcel of land known as Nakuru/Municipality Block 11/195 (the suit property) be forthwith removed.
The application is supported by the affidavit of the director of the applicant, Kenneth Maweu Kasinga, and is premised on the grounds that by a decree of this court issued on 25th July, 2011 the applicant was declared to have been in adverse possession of the suit property and to be entitled to registration as the proprietor of the suit property and that through an order of this court issued on 20th January, 2014 the Deputy Registrar of this court was ordered to execute all the documents necessary to effect the transfer. The applicant contends that despite all the necessary transfer documents having been prepared the transfer could not be effected as it emerged that the director of the respondent (Zaina Mukami Chelang'a) had placed a caution over the suit property way back in 2000. Contending that the said director of the respondent does not hold any superior interest over the suit property and that unless the caution is lifted the transfer ordered by the court cannot be effected, the applicant has urged the court to allow the application in order to enable the execution of the said decree of the court.
When the application came up for hearing on 6th May, 2014 the application was declined for want of proper service.
Following an order for fresh service, the applicant served the respondent by way of substituted service (advertisement). That fact is borne out by the affidavit of the process server, Nelson Kisolei, sworn on 28th May, 2014. In that affidavit the process server has deposed that on 22th May, 2014 he received the application herein from the applicant's advocates, Kiplenge and Kurgat Advocates, with instruction to effect service of the same to the respondent by way of substituted service.
Upon paying for the substituted service, the matter was advertised on 23rd May, 2014 as can be attested by a copy of the newspaper extract annexed to the processor's affidavit.
Despite having been served by way of substituted service, the respondent did not file any response. That being the case, when the matter came up for hearing on 28th May, 2014 counsel for the applicant, urged the court to allow the application as it was unopposed.
Upon reading and considering the application and the affidavit evidence adduced in support thereof, particularly the decree issued on 25th July, 2011 and the court order issued on 17th January, 2014 in respect thereof, and being satisfied that the respondent was duly served with the application herein, I allow the application as prayed.
Dated, Signed and Delivered at Nakuru this 4th Day of July 2014
H.A. OMONDI
JUDGE