[2014] KEHC 2500 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENTAL AND LAND COURT AT NAIROBI

ELC SUIT NO. 356 OF 2012

NANCY GATHONI….……..………….….....………………..1ST PLAINTIFF

ANN NJERI…………………………………...……………..2ND PLAINTIFF

GEOFFREY MWAURA MUTHONI……………..………….3RD PLAINTIFF

VERSUS

RUTH NJAMBI NDURURU………………………….......1ST DEFENDANT

FAITH WANJIRU MUYA..……………………..…..…….2ND DEFENDANT

RAHAB WANJIRU NDUNG’U………….…………….…3RD DEFENDANT

GODFREY MBUGUA MWAURA………….……………..4TH DEFENDANT

JOHNSON NJOGU MUGO………………………….…5TH DEFENDANT

REGISTRAR OF TITLES KIAMBU…………………….6TH DEFENDANT

RULING

The application before this court for determination is a Notice of Motion dated 25th October 2013 by the 1st Defendant herein, seeking orders that the District Land Registrar, Kiambu be ordered to lift the restrictions registered against the land parcel number Karai/Karai/1667 (hereinafter “the suit property”). The application is supported by an affidavit sworn by the 1st Defendant on 25th October 2013, wherein she states that the Plaintiff’s suit has been dismissed by this court, yet the ex parte restraining orders they obtained against the Defendants are still registered against the suit property. Therefore, that it is in the interests of justice that the restrictions against the suit property be lifted.

This Court directed the 1st Defendant to serve the Plaintiffs with the said Notice of Motion and hearing notice which was done, but the said Plaintiffs did not file any response. The 1st Defendant reiterated that she wanted the caution to be removed, and to be awarded costs during the hearing of the Notice of Motion on 6th August 2014.

The Issue and Determination

I have carefully considered the pleadings filed and submissions made by the 1st Defendant. The issue for determination is whether the restriction lodged against the title to the suit property should be withdrawn. I notice in this regard that the 1st Defendant did not bring any evidence of such restriction. However, I also note from the court record that there were ex parte orders granted in this suit on 20th June 2012 restricting dealings with the suit property and any subdivisions thereof, upon the filing of an application by the Plaintiffs dated 19th June 2012.

The applicable law on the issue before the court is section 73 of the Land Registration Act of 2012 (Act No 3 of 2012) which provides that a caution may be withdrawn by the cautioner or removed by order of the court or, by order of the Registrar. Section 2 of the Act defines a caution to include a caveat. The exercise of the court’s power in this regard must be undertaken with the provisions of section 71 of the Act in mind, which section provides for the circumstances when a caveat may be lodged and therefore subsist as follows:

“A person who—

(a) claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under this Act;

(b) is entitled to a licence; or

(c) has presented a bankruptcy petition against the proprietor of any registered land, lease or charge, may lodge a caution with the Registrar forbidding the registration of dispositions of the land, lease or charge concerned and the making of entries affecting the land lease or charge.”

Upon perusal of the court record, I note that although the suit herein is still subsisting, the Notice of Motion dated 19th June 2012 which was the basis for the ex parte orders restricting dealings with the suit property was dismissed on 8th November 2012 for non-attendance. The circumstances for the lodging of the restrictions and/or caveat against the suit property therefore no longer apply, as their substratum, which was the Notice of Motion dated 19th June 2012, no longer exists.

The 1st Defendant’s Notice of Motion is therefore allowed for the above reasons, and it is accordingly ordered that the District Land Registrar of Kiambu do forthwith remove any restrictions and/or caveat registered against the title to the property known as Karai/Karai/1667 and/or the sub-divisions thereof. The 1st Defendant shall meet the costs of the Notice of Motion dated 25th October 2013.

Orders accordingly.

Dated, signed and delivered in open court at Nairobi this 9th day of October, 2014.

P. NYAMWEYA

JUDGE