[2024] KEHC 329 (KLR)
The court found that although the application to lift the prohibitory orders was not opposed, the applicant bore the burden of proving that the decretal sum had been fully settled. The applicant failed to provide evidence demonstrating full settlement of the decretal sum for which the prohibitory orders were placed...
Source-derived case information.
- Citation
- [2024] KEHC 329 (KLR)
- Parties
- Plaintiff: M’Ibiri M’Mbogori; Defendant: CMC Motors Group
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 16 of 2001
- Procedural Posture
- Civil Case / Ruling on Application to Lift Prohibitory Orders
- Outcome
- Application disallowed.
- Judges
- TW Cherere
- Legal Topics
- Execution of Decree, Prohibitory Orders, Burden of Proof
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Ibiri M’Mbogori
Plaintiff
CMC Motors Group
Defendant
Procedural Posture
Civil Case / Ruling on Application to Lift Prohibitory Orders
Legal Issues
- 1 Whether the applicant has fully settled the decretal sum to warrant lifting of prohibitory orders on LR Ntima/Ntakira/891.
- 2 Whether the applicant has discharged the burden of proof to justify the orders sought.
Ratio Decidendi
The court found that although the application to lift the prohibitory orders was not opposed, the applicant bore the burden of proving that the decretal sum had been fully settled. The applicant failed to provide evidence demonstrating full settlement of the decretal sum for which the prohibitory orders were placed on his property. Consequently, the court was not persuaded to grant the orders sought and disallowed the application.
Court Disposition
Application disallowed.
Orders
- The application dated 29th June, 2023 is disallowed.
- Applicant shall meet his own costs of the application.
Full Case Text
Judgment text and source record
19 paragraphs
M’Mbogori v CMC Motors Group (Civil Case 16 of 2001) [2024] KEHC 329 (KLR) (22 January 2024) (Ruling)
Neutral citation: [2024] KEHC 329 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Case 16 of 2001
TW Cherere, J
January 22, 2024
Between
M’Ibiri M’Mbogori
Plaintiff
and
CMC Motors Group
Defendant
Ruling
1. By a ruling dated 06th March, 2007, Lenaola J (as he then was) allowed the Applicant to settled the sum of Kshs 265,022/- pus interest of 16% and costs of the suit assessed at Kshs 50,000/- in monthly installments of Kshs 50,000/-.
2. By notice of motion dated 29th June, 2023, supported by Applicant’s affidavit sworn on even date, Applicant prays for lifting of the prohibitory orders placed on his LR Ntima/Ntakira/891 on the ground that the decretal sum due to the Respondent has been fully settled.
3. Although the application is not opposed, it is trite that whoever alleges must prove. Applicant in this case has not demonstrated that he has fully settled the decretal sum for the prohibitory orders were placed on his title to LR Ntima/Ntakira/891.
4. Consequently, I am not persuaded to grant the orders sought and the application dated 29th June, 2023 is thus disallowed. Applicant shall meet his own costs of the application.
DATED AT MERU THIS 22ND DAY OF JANUARY 2024WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistant - Kinoti/MuneneFor Applicant - N/A for L. Kimathi Kiara & Co. AdvocatesFor Respondent - N/A for A.G.Riungu & Co. Advocates