[2023] KEELC 18578 (KLR)

Ngugi v Land Registrar, Murang’a (Enviromental and Land Originating Summons 1 of 2022) [2023] KEELC 18578 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18578 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Enviromental and Land Originating Summons 1 of 2022

LN Gacheru, J

July 6, 2023

(FORMERLY THIKA ELC NO 120 OF 2019) IN THE MATTER OF SECTION 78(2) OF THE LAND REGISTRATION ACT AND IN THE MATTER OF SECTION 4(4) OF THE LIMITATION OF ACTIONS ACT AND IN THE MATTER OF LAND PARCEL KAKUZI/KIRIMIRI/BLOCK 9/249 AND IN THE MATTER OF THE ESTATE OF PETER NGUGI KIMANI (DECEASED) AMENDED ORIGINATING SUMMONS UNDER SECTION 38 OF THE LIMITATION OF ACTIONS ACT AND UNDER ORDER 37 RULE 7 OF THE CIVIL PROCEDURE RULES

Between

Agnes Njoki Ngugi

Plaintiff

and

Land Registrar, Murang’a

Defendant

Judgment

1. Through an amended Originating Summons dated July 22, 2022 the Plaintiff herein sought the following orders:1. That the prohibitory order issued over land parcel Kakuzi Kirimiri/Block 9/249, (the suit property) in Murang’a Civil Suit No 124 of 1991, be lifted.2. That a declaration that judgement entered on July 25, 1991, is time barred and cannot be enforced.

2. The Originating Summons is based on the grounds stated thereon and the Supporting Affidavit of the Plaintiff – Agnes Njoki Ngugi. She averred that she is the administrator of the estate of her late husband Peter Ngugi Kimani (deceased). She further averred that while distributing the deceased’s estate, she discovered that. Joseph Njugunah Kanyi, had obtained judgement against Peter Ngugi Kimani (deceased) in Murang’a SPM Civil Suit No 124 of 1991, on July 25, 1991, and a prohibitory order was issued against the suit property.

3. It is the Plaintiff’s contention that judgement has not been executed to this day therefore leaving the Plaintiff unable to distribute the estate of the deceased as per the confirmed grant. Lastly, the Plaintiff sought orders for the Land Registrar - Murang’a to lift the said prohibitory order.

4. Prior to the matter being transferred to Murang’a ELC from Thika ELC, the Defendant entered appearance, filed their Grounds of Opposition and Replying Affidavit both dated October 28, 2021. The Defendant opposed the Originating Summons on the grounds that no sufficient ground was provided by the Plaintiff to warrant the orders sought. The Defendant stated that the prohibitory Orders sought over the suit property was granted in Murang’a Civil Suit No 124 of 1991, and therefore the prayer has been overtaken by events. The Defendant deponed that there was a similar suit seeking to lift the prohibitory order over the suit property in SPMCC No 124 of 1991. The Defendant prayed that the Originating Summons be dismissed entirely.

5. The Court directed that the matter be dispensed with by way of written submissions. The Plaintiff through the Law Firm of J.K. Ngaruiya & Co. Advocates, filed her written submissions in support of the application on February 8, 2023. It was submitted that a prohibitory Order may be cancelled after the expiry of time for which it was ordered or at the time the proof of occurrence of the event stated in the prohibition has occurred. The Plaintiff relied on the case of Grace Wambui Njambuya v John Waweru Wamai (2018) eKLR, where it was held;“The court may order a prohibition or inhibition on such conditions as it thinks justifiable in the circumstances. It may be for a period of time or until the occurrence of a certain action. A prohibition may be cancelled after the expiry of the time for which it was ordered or at the proof of occurrence of the event stated in the prohibition.”

6. It was further submitted that the time of execution of the said judgement in Murang’a Civil Case 124 of 1991, lapsed in 2003, and was thereby time barred under Section 4(4) of the Limitation of Actions Act, which provides as follows:An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered, or (where the judgment or a subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods) the date of the default in making the payment or delivery in question, and no arrears of interest in respect of a judgment debt may be recovered after the expiration of six years from the date on which the interest became due.”

7. The Court has carefully read and considered the instant Originating Summons and the response by the Defendant, the submissions, authorities cited and the relevant provisions of law and finds that the sole issue for determination is:

a. Whether the orders sought are merited 8. Before delving into the determination, it is important to lay a background of the matter. A suit was filed between Joseph Kanyi and Peter Kimani (deceased) in Murang’a Civil Suit No 124 of 1991. Judgement was entered in favour of Joseph Kanyi, and Peter Kimani was ordered to pay the decretal sum of Kshs 21,200/= which he failed to do. This prompted Joseph Kanyi to place a prohibitory Order on land parcel No Kakuzi/Kirimiri/Block 9/249 (the suit property) on November 29, 1991, which was then registered in Peter Kimani’s (deceased) name.

9. Following the demise of Peter Kimani, his widow, the Plaintiff herein instituted succession proceedings and was subsequently appointed the administrator of his estate on 11th April 2014, which was later confirmed on January 5, 2016.

10The present dispute arose thereafter as the Plaintiff attempted to distribute her late husband’s estate as per the Confirmed Grant and discovered that the prohibitory Order was still in effect over the suit property. The Plaintiff therefore prays for the removal of the prohibitory order, which the Defendant opposes.

11. Section 2 of the Land Registration Act defines a Caution to include a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice.

12. Section 71 (1) of the Land Registration ActNo 3 of 2012 provides for lodging of cautions. It states 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”.

13. The main issue which this suit relates however lies under Section 73 of the Land Registration Act which provides for withdrawal of cautions. It states as follows:(1)A caution may be withdrawn by the cautioner or removed by order of the Court or, subject to subsection (2), by order of the Registrar.(2)The Registrar, on the application of any person interested, may serve notice on the cautioner warning the cautioner that the caution will be removed at the expiration of the time stated in the notice.(3)If a cautioner has not raised any objection at the expiry of the time stated, the Registrar may remove the caution.(4)If the cautioner objects to the removal of the caution, the cautioner shall notify the Registrar, in writing, of the objection within the time specified in the notice, and the Registrar shall, after giving the parties an opportunity of being heard, make such order as the Registrar considers fit, and may in the order provide for the payment of costs.(5)After the expiry of thirty days from the date of the registration of a transfer by a chargee in exercise of the chargee’s power of sale under the law relating to land, the Registrar shall remove any caution that purports to prohibit any dealing by the chargee that was registered after the charge by virtue of which the transfer has been effected.(6)On the withdrawal or removal of a caution, its registration shall be cancelled, and any liability of the cautioner previously incurred under Section 74 shall not be affected by the cancellation”.

14. The Plaintiff has sought to withdraw the caution and/or prohibitory order to enable her complete the distribution of her late husband’s estate. At the time that the prohibitory order was placed over the suit property, Joseph Kanyi had obtained judgement against Peter Kimani (deceased) for the decretal sum of Kshs 21,200/= which sum has not been paid to date.

15. As provided for under Section 73 of the Land Registration Act, the Cautioner, the Land Registrar, or an Order of the Court may arrange for the removal of caution. In the present case, the Plaintiff has sought for the removal of the caution/prohibitory order by means of Court order. It should be noted that the Cautioner is not a party to the suit, nor did he apply to have the caution or prohibition order over the suit property removed. The Plaintiff has therefore sought to circumvent the provisions under the Act to have the caution removed through a Court order directing the Defendant who is the Land Registrar to remove the caution on prohibition Order without informing the Cautioner - Joseph Kanyi.

16. Section 73(2) of the Land Registration Act provides that for the removal of a caution by way of court order, a notice must first be given to the cautioner, who will then have an opportunity to raise an objection.

17. Without Notice to the Cautioner, for removal of the prohibitory Order, it would not serve the interest of justice to remove the caution and or prohibitory Order. The same principle was held in the case of Jane Wanjiku Mwangi & another v Nathan Ndegwa Njeru [2020] eKLR, where it was held as follows:Following this principle, it can be argued that the Environment and Land Court can invoke its original jurisdiction especially where judgment favours the Applicant and there is no pending Appeal nor orders setting aside the judgment of the Court. In any event even if the Applicant was to file a fresh suit would the Court arrive at a different verdict than to hold that there exist no grounds to keep the said caution persisting on the title in view of the judgment of the Court. I would hold differently where the cautioner is not a party to the suit because then the Applicant would have to move the Land Registrar who would notify the cautioner. Or alternatively the Applicant may file a fresh suit against the cautioner in that regard. The two routes are a sure way of affording the cautioner the right to be heard on the caution.”

18. Considering that no Notice has been afforded to the Cautioner to respond to the suit, nor has the decretal sum been paid, this Court finds that allowing the removal of the caution/prohibitory order would greatly prejudice the Cautioner. Had the decretal sum been paid and proof provided, this Court would allow the present application. This Court pronounced itself similarly in the case of In re Withdrawal of Caution by Mary Njeri Mwaura [2017] eKLR where it held as follows:The Applicant who is the administratrix of the estate of Mwaura Muiruri as is evident from the certificate of confirmation of grant dated 18th June 2009, has come to court seeking for removal of the said caution. The said caution has been in place from the year 1982. That is such a long period and the loan facility was for Kshs15,000/=. This Court has no doubt that the said amount was fully paid and that is why the benefactor of the caution or charge never realized the security.”

19. For the above reasons, the Court finds that the Plaintiff has not met the requirements for the removal of the caution.

20. On the issue of the declaration; that a declaration be made to the effect that the Judgement entered on July 25, 1991, is time barred, it is evident that the prohibitory Order was entered due to Civil Suit No 124 of 1991, at DM Court - Murang’a. That was indeed an execution of the said Judgement, and this Court cannot be called to declare the said Judgement time barred.

21. Thus, this Court after analysing the available evidence, finds and holds that the Plaintiff has not proved her case on the required standard. The instant Originating Summons is thus dismissed entirely with no orders as to costs since the Defendant did not file submissions.It is so ordered.

DATED, SIGNED AND DELIVEREDVIRTUALLY AT MURANG’A THIS 6TH DAY OF JULY, 2023. L. GACHERUJUDGEDelivered online in the presence of; -Mr Ngaruiya for the PlaintiffNo Appearance for RespondentJoel Njonjo - Court AssistantL. GACHERUJUDGEJULY 6, 2023