[2019] KEELC 4208 (KLR)
The court found that the suit had been conclusively determined by summary judgment and that an application for review had already been disallowed. The continued existence of a prohibitory order on the suit land was therefore unjustified. The green card evidence confirmed the encumbrance, and there being no...
Source-derived case information.
- Citation
- [2019] KEELC 4208 (KLR)
- Parties
- Plaintiff: Meru Central Farmers Cooperative Union and 10 others; Defendant: John Kithinji Mberia
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 106 of 1999
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application to Lift Prohibitory Order
- Outcome
- application allowed
- Legal Topics
- Lifting Prohibitory Orders, Land Encumbrances, Post Judgment Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Meru Central Farmers Cooperative Union and 10 others
Plaintiff
John Kithinji Mberia
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application to Lift Prohibitory Order
Legal Issues
- 1 Whether the prohibitory order over parcel No. IGOJI/MWERU 1/433 should be lifted following the final determination of the suit.
- 2 Whether there is any justification to maintain the restriction after the suit has been concluded.
Ratio Decidendi
The court found that the suit had been conclusively determined by summary judgment and that an application for review had already been disallowed. The continued existence of a prohibitory order on the suit land was therefore unjustified. The green card evidence confirmed the encumbrance, and there being no opposition from the respondents, the court held that the application to lift the prohibitory order was merited. The court exercised its discretion to allow the application and ordered the lifting of the restriction, with no order as to costs.
Court Disposition
application allowed
Orders
- The prohibitory order and any other restriction over parcel No. IGOJI/MWERU 1/433 are hereby lifted.
- No order as to costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 106 OF 1999
MERU CENTRAL FARMERS COOPERATIVE
UNION AND 10 OTHERS........................................................PLAINTIFFS
VERSUS
JOHN KITHINJI MBERIA.....................................................DEFENDANT
RULING
1. The application dated 27. 12. 2018 seeks orders to lift the orders of prohibition and any other restriction over parcel No. IGOJI/MWERU 1/433, and that costs of this application be provided for
2. The grounds in support of the application are that the suit was determined and an application for review to reopen it was disallowed on 28. 11. 2018. Further, it is contended that the suit land Igoji/Mweru 1/433 is still encumbered yet the suit has been determined.
3. Applicant has sworn an affidavit on 27. 12. 2018 where he has deponed that the suit was determined by way of summary judgment and his application to review the same was disallowed on 28. 11. 2018 and that the suit land had been inhibited as per the annexure marked ‘JKMI’ (copy of green card). Applicant cannot deal with the suit land due to the prohibitory order placed by the court.
4. The application was served but there was no response from plaintiff /respondents.
5. A perusal of the document marked “JKMI”, a green card confirms that indeed land parcel No. 1/433 has been encumbered by a prohibitory order due to case no. 106 of 1999.
6. This case was finalized via a judgment of 27. 11. 2000.
7. I therefore find that the application before me is merited. The same is allowed with no orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 20TH MARCH, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Maheri holding brief for Mwanzia for applicant/defendant
Defendant
HON. LUCY. MBUGUA
ELC JUDGE