[2023] KEHC 23947 (KLR)
The court found that the restriction on land parcel Evurori/Nguthi/2310 was imposed to subsist until the finalization of Embu HCCC No. 165 of 2008. The record showed that the High Court delivered its judgment in 2011, and the subsequent appeal to the Court of Appeal was dismissed in 2013. No further appeal was...
Source-derived case information.
- Citation
- [2023] KEHC 23947 (KLR)
- Parties
- Applicant: Eliud Njue Mark; Respondent: Attorney General; Respondent: Director of Land Adjudication and Settlement; Respondent: Chief Land Registrar; Respondent: Lameck Gichangi (sued as representative of the Nditi Clan, Mbeere); Respondent: Nyaga Ciathathi (Clan of Mbeere); Respondent: Matthew Mugo Ngari; Respondent: Erastus Irei Njeru; Respondent: Jamlick Njiru Nthuini; Respondent: John Mutitu Ngacha
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 165 of 2008
- Procedural Posture
- Civil Case / Ruling on Chamber Summons to Lift Restriction on Land
- Outcome
- application allowed
- Judges
- LM Njuguna
- Legal Topics
- Removal of Land Restriction, Land Registration, Finality of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliud Njue Mark
Applicant
Attorney General
Respondent
Director of Land Adjudication and Settlement
Respondent
Chief Land Registrar
Respondent
Lameck Gichangi (sued as representative of the Nditi Clan, Mbeere)
Respondent
Nyaga Ciathathi (Clan of Mbeere)
Respondent
Matthew Mugo Ngari
Respondent
Erastus Irei Njeru
Respondent
Jamlick Njiru Nthuini
Respondent
John Mutitu Ngacha
Respondent
Procedural Posture
Civil Case / Ruling on Chamber Summons to Lift Restriction on Land
Legal Issues
- 1 Whether the restriction placed on land parcel Evurori/Nguthi/2310 should be lifted following the conclusion of all related litigation.
- 2 Whether the applicant is entitled to the removal of the restriction to enable him to deal with the property.
Ratio Decidendi
The court found that the restriction on land parcel Evurori/Nguthi/2310 was imposed to subsist until the finalization of Embu HCCC No. 165 of 2008. The record showed that the High Court delivered its judgment in 2011, and the subsequent appeal to the Court of Appeal was dismissed in 2013. No further appeal was preferred. As all litigation concerning the property had reached its logical conclusion, the determining factor for maintaining the restriction had been exhausted. Therefore, the court held that there was no legal basis to continue the restriction, and the applicant was entitled to have it lifted.
Court Disposition
application allowed
Orders
- The restriction placed against land parcel number Evurori/Nguthi/2310 is hereby removed.
- No order as to costs.
Full Case Text
Judgment text and source record
41 paragraphs
Mark v Attorney General & 8 others (Civil Case 165 of 2008) [2023] KEHC 23947 (KLR) (17 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23947 (KLR)
Republic of Kenya
In the High Court at Embu
Civil Case 165 of 2008
LM Njuguna, J
October 17, 2023
Between
Eliud Njue Mark
Applicant
and
Attorney General
1st Respondent
Director of Land Adjudication and Settlement..
2nd Respondent
Chief Land Registrar
3rd Respondent
Lameck Gichangi (sued as representative of the Nditi Clan, Mbeere)
4th Respondent
Nyaga Ciathathi (Clan of Mbeere)
5th Respondent
Matthew Mugo Ngari
6th Respondent
Erastus Irei Njeru
7th Respondent
Jamlick Njiru Nthuini
8th Respondent
John Mutitu Ngacha
9th Respondent
Ruling
1. The applicant has filed chamber summons dated 27th July 2023 through which he is seeking orders as follows:a.Spent; andb.An order do issue that this honourable court remove the restriction placed against land parcel number Evurori/Nguthi/2310 in Nairobi HCCC No. 2509 of 1998 which is now Embu HCCC No. 165 of 2008 and finally Nyeri Court of Appeal Case No. 110 of 2011.
2. The application is based on the grounds set out in the supporting affidavit to the application. That the applicant is in urgent need of medical attention but cannot access the land parcel number Evurori/Nguthi/2310 so that he can sell a portion of it in order to raise money for medication. That there is an existing restriction on the land to last until finalization of Embu HCCC No. 165 of 2008. He averred that if the orders sought are not granted, he is bound to suffer as he is of ill health.
3. The application is unopposed. The court directed that the application be canvassed by way of written submissions but none of the parties complied.
4. The only issue for determination is whether or not the court can issue the orders as prayed.
5. Land parcel number Evurori/Nguthi/2310 is part of properties that were the subject of litigation in Nairobi HCCC No. 2509 of 1998 which morphed into Embu HCCC No. 165of 2008. This court, being differently constituted, delivered its judgment on 15th March 2011. The decision was the subject of an appeal in the Court of Appeal Case No. 110 of 2011 sitting in Nyeri where the appeal was dismissed vide judgment dated 10th October 2013.
6. According to a copy of official search of Evurori/Nguthi/2310 dated 10th May 2023 annexed to the supporting affidavit to the application, the property is registered to the applicant and is encumbered with a restriction whose purpose is to be exhausted when Embu HCCC No. 165 of 2008 is finalised.
7. From a perusal of the court’s record, there is sufficient proof that the case indeed reached its logical conclusion and no further appeal has been preferred against the court of appeal’s decision.
8. Given that all matters have been finalized at this point in time, I have no choice but to allow the application herein for the simple reason that the determining factor for lifting the restriction has been exhausted.
9. Consequently, the application is hereby allowed with no order as to costs.
10. It is so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 17TH DAY OF OCTOBER, 2023. L. NJUGUNAJUDGE.................................for the Applicant................................for the Respondents