[2017] KEELC 3460 (KLR)
The court held that the restriction registered against the applicant's property was placed at the instigation of the EACC, who are not parties to the current proceedings. Removing the restriction without giving the EACC an opportunity to be heard would be contrary to the principles of natural justice and due...
Source-derived case information.
- Citation
- [2017] KEELC 3460 (KLR)
- Parties
- Applicant: The National Council of Churches of Kenya; Respondent: The Chief Land Registrar; Respondent: The Land Registrar, Nyeri
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 16 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Removal of Restriction and Joinder of Party
- Outcome
- Application for removal of restriction deferred; EACC to be enjoined as a necessary party.
- Judges
- L Waithaka
- Legal Topics
- Removal of Restriction, Joinder of Parties, Right to Property, Fair Administrative Action
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The National Council of Churches of Kenya
Applicant
The Chief Land Registrar
Respondent
The Land Registrar, Nyeri
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Removal of Restriction and Joinder of Party
Legal Issues
- 1 Whether the restriction registered against the applicant's property should be removed without hearing the EACC.
- 2 Whether the EACC should be enjoined as a necessary party before the court can conclusively determine the application.
- 3 Whether the applicant's constitutional rights to property and fair administrative action have been breached.
Ratio Decidendi
The court held that the restriction registered against the applicant's property was placed at the instigation of the EACC, who are not parties to the current proceedings. Removing the restriction without giving the EACC an opportunity to be heard would be contrary to the principles of natural justice and due process. The EACC is a necessary party for the just determination of the application, as they are best placed to explain the status of the investigations that led to the restriction. The court therefore ordered that the EACC be enjoined in the proceedings under Order 1 Rule 10 of the Civil Procedure Rules. The application for removal of the restriction could not be determined without...
Court Disposition
Application for removal of restriction deferred; EACC to be enjoined as a necessary party.
Orders
- EACC to be enjoined in these proceedings under Order 1 Rule 10 of the Civil Procedure Rules.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
MISC. ELC NO. 16 OF 2016
THE NATIONAL COUNCIL OF CHURCHES OF KENYA..........................APPLICANT
VERSUS
THE CHIEF LAND REGISTRAR ......................................................1ST RESPONDENT
THE LAND REGISTRAR, NYERI.....................................................2ND RESPONDENT
RULING
1. The Notice of Motion dated 29th June 2016, seeks orders compelling the respondents to remove the restriction lodged against Nyeri/Municipality Block 1/1280(hereafter referred to as the suit property) and costs of the application.
2. The application is premised on the grounds on the face of the application and is supported by affidavit sworn by the applicant’s General Secretary and Chief Executive Officer, Reverend Canon Peter Karanja on 29th June, 2016. He deponed that the applicant is the registered owner of the suit property; that the respondents registered a restriction against the suit property on 8th February, 2012 at the instigation of the Ethics and Anti-Corruption Commission (EACC) to enable it conclude investigations.
3. The Applicant has written several letters to the 2nd respondent to remove the restriction (21st May, 2015 and 12th October, 2015) but there has been no response or action taken by the respondents.
4. Further the applicant has not received any report of the investigations by EACC. It is their contention, that this is a breach of its constitutional right to property under Article 40 of the Constitution and the right to fair administrative action under Article 47 of the Constitution.
5. The application is not opposed. From the affidavit of service sworn on 2nd November, 2016 by Peter Gakui Mugo, a licensed process server, it appears only the 2nd respondent was served with the Notice of Motion on 28th November 2016. There is no proof that the 1st respondent was served.
6. EACC who instigated the registration of the restriction on 8th February, 2012 are also not parties in this matter. It is my considered view that the restriction against dealings with the suit property placed by the EACC should not be removed without EACC been given an opportunity to explain why after placing a restriction on the title four years ago to carry out to investigations, the restriction should not be removed.
7. In the interest of justice, I order that EACC be enjoined in these proceedings under Order 1 Rule 10 of the Civil Procedure Rules having been found to be a necessary party in assisting the court to conclusively deal with the application before it. Costs of the application shall be in the cause.
Dated, signed and delivered in open court at Nyeri this 14th day of February, 2017.
L N WAITHAKA
JUDGE
In the presence of:
Mr. King'ori h/b for Mr. Juma for the plaintiff
N/A for the respondents
Court clerk - Esther