[2014] KEHC 7744 (KLR)
The court found that the Plaintiff is the legal owner of the property L.R.NO.36/1/219 Eastleigh Nairobi, as evidenced by the certificate of confirmation of grant. The Defendant failed to appear or file any response to substantiate her claim of beneficiary interest under the caveat. In the absence of any evidence...
Source-derived case information.
- Citation
- [2014] KEHC 7744 (KLR)
- Parties
- Plaintiff: Mohamed Omar Ibrahim; Defendant: Halima O. Ibrahim
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 560 of 2011
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- CM Kariuki
- Legal Topics
- Removal of Caveat, Beneficial Interest, Confirmation of Grant, Title Ownership
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Omar Ibrahim
Plaintiff
Halima O. Ibrahim
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the caveat registered by the Defendant on L.R. NO.36/1/219 Eastleigh Nairobi should be withdrawn or removed by court order.
- 2 Who should bear the costs of the summons.
Ratio Decidendi
The court found that the Plaintiff is the legal owner of the property L.R.NO.36/1/219 Eastleigh Nairobi, as evidenced by the certificate of confirmation of grant. The Defendant failed to appear or file any response to substantiate her claim of beneficiary interest under the caveat. In the absence of any evidence from the Defendant, the court held that the caveat was unsustainable and should be removed. The Plaintiff was therefore entitled to the orders sought, including the removal of the caveat and an award of costs.
Court Disposition
Judgment for the plaintiff.
Orders
- The Registrar of Titles is directed to remove the caveat registered against L.R.NO.36/1/219 Eastleigh, Nairobi by the Defendant.
- The costs of the suit are awarded to the Plaintiff.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENVIRONMENTAL AND LAND DIVISION
ELC CIVIL SUIT NO. 560 OF 2011
MOHAMED OMAR IBRAHIM…………………………… PLAINTIFF
VERSUS
HALIMA O. IBRAHIM……… …………………………… DEFENDANT
JUDGMENT
The plaintiff on 12th October 2011 filed the instant originating summons against the Defendant seeking the determination of the questions:
Whether the caveat registered on the title L.R. NO.36/1/219 Eastleigh Nairobi by the Defendant should be withdrawn by the Defendant or removed by an order of this Honourable court and
Who should bear the costs of the summons,
The Plaintiff/Applicant swore a supporting affidavit dated 12th October 2011 and in the affidavit depones that he is the owner of Land L.R.NO.36/1/219 Eastleigh Nairobi pursuant to a confirmation of Grant dated 22/3/2010 annexed to the affidavit and marked “MOI1”. The applicant states that he learnt through the Registrar of Titles that the Defendant had placed a caveat on the property claiming beneficiary interest as per the copy annexed to the affidavit and marked “M0I2”. The applicant avers that the Defendant has no beneficial interest or any other interest in the property and there is no legal basis for sustaining the caveat and that the same ought to be removed.
The Defendant/Respondent was served with the originating summons by way of substituted service as ordered by the court on 23/3/2012 and on 19/9/2012 the court gave directions that the hearing of the originating summons do proceed by way of viva voce evidence. The Defendant did not enter any appearance and did not file any response to the originating summons. The court on 26/6/2013 granted leave to the applicant to serve hearing notice of the originating summons on the Defendant through her last known physical address at c/o P.O. Box 30089. The originating summons was fixed for hearing before me on 22/1/2014 and even though the Defendant had been served there was no appearance on her behalf.
The Plaintiff gave evidence reiterating the contents of his affidavit sworn in support of the originating summons. Upon review of the evidence and in the absence of any controverting evidence from the Defendant, I am satisfied that the Plaintiff is the legal owner and/or his entitled to ownership of the subject suit property having regard to the certificate of confirmation of grant to the estate of the late Hadija Ibrahim Adan which indicates the property L.R. NO.36/1/219- Eastleigh Nairobi was to be inherited wholly by the Plaintiff/Applicant.
The Defendant did not enter appearance and/or file any response and thus the beneficiary interest she claimed under the registered caveat has not been established and is unsustainable against the title. The court in the premises enters judgment in favour of the plaintiff and orders and directs the Registrar of Titles to remove the caveat registered against L.R.NO.36/1/219 Eastleigh, Nairobi by the Defendant herein. The costs of the suit are awarded to the Plaintiff.
Judgment dated and delivered at Nairobi this 27th day of March 2014
J. M. MUTUNGI
JUDGE
In presence of:
…………………………………………… PLAINTIFF
……………………………………………. DEFENDANT