[2020] KEELC 871 (KLR)
The court found that the applicant is the registered owner of the suit land and had previously obtained eviction orders against the respondents. The 3rd respondent, having trespassed and subsequently lodged a caution on the land after the conclusion of the case, did so unlawfully and without merit. The caution...
Source-derived case information.
- Citation
- [2020] KEELC 871 (KLR)
- Parties
- Applicant: Nicholus Ngavo Iminde; Respondent: Henry Shivoko; Respondent: Femina Ayuma Shivoko; Respondent: Timothy Shikanga Shivoko; Respondent: John Shivoko
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 330 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Removal of Caution
- Outcome
- application allowed
- Judges
- NA Matheka
- Legal Topics
- Removal of Caution, Land Registration, Eviction Orders, Trespass, Court Orders Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholus Ngavo Iminde
Applicant
Henry Shivoko
Respondent
Femina Ayuma Shivoko
Respondent
Timothy Shikanga Shivoko
Respondent
John Shivoko
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Removal of Caution
Legal Issues
- 1 Whether the caution lodged by the 3rd respondent against land parcel No. South/Kabras/Shamberere/3345 should be removed.
- 2 Whether the applicant, as the registered owner, is entitled to utilize the land free from encumbrances placed by the 3rd respondent.
Ratio Decidendi
The court found that the applicant is the registered owner of the suit land and had previously obtained eviction orders against the respondents. The 3rd respondent, having trespassed and subsequently lodged a caution on the land after the conclusion of the case, did so unlawfully and without merit. The caution served only to frustrate the applicant's right to utilize his property. As the application was unopposed and the applicant is entitled to enjoy the fruits of his judgment, the court held that the caution(s) lodged by the 3rd respondent should be removed to allow the applicant full use of his land.
Court Disposition
application allowed
Orders
- The caution or cautions lodged against land parcel No. South/Kabras/Shamberere/3345 by the 3rd respondent prior to 5th November 2019 are hereby removed.
- No orders as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 330 OF 2017
NICHOLUS NGAVO IMINDE....PLAINTIFF/APPLICANT
VERSUS
HENRY SHIVOKO
FEMINA AYUMA SHIVOKO
TIMOTHY SHIKANGA SHIVOKO
JOHN SHIVOKO.............DEFENDANTS/ RESPONDENTS
RULING
The application is dated 7th September 2020 and is brought under order 51 rule 1 of the Civil Procedure Rules, Section 73 (i) of the Land Registration Act (Act No. 3) of 2012, Section 3a and 63 93 of the Civil Procedure Act seeking the following orders;
1. That this honourable court do issue an order for the removal of a caution placed by the 3rd respondent against land parcel No. South/Kabras/Shamberere/3345 to allow the applicant to utilize his land.
2. That the caution lodge against land parcel No. South/Kabras/Shamberere/3345 by the 3rd respondent herein be and is hereby removed.
3. Costs of this application be provided for.
It is based on the following grounds that the applicant is the registered owner of the land parcel No. South/Kabras/Shamberere/3345. That he filed a case for eviction against the respondent herein which case was concluded and eviction orders were issued by this honourable court against the respondent, the respondents vacated the said suit of land even before he enforced the said orders. That the 3rd respondents who is a stranger to him who had trespassed on his land before eviction orders were issued, had put a restriction on his land when this case was concluded. That the 3rd respondent has illegally and unlawfully lodged cautions on the said parcels of land by trespassing into it before eviction orders were issued. That the caution has no merits and intended to frustrate the applicant from utilizing his land. That the applicant requires that this parcel of land be dis-encumbered to enable him utilize it. The respondents shall suffer no prejudice if the orders sought are granted.
This court has considered the application and the submissions therein. The application was not opposed. I have perused the court record and find that on the 5th November 2019 judgement was entered against the respondents and an eviction order issued. The applicant submitted that the 3rd respondent has illegally and unlawfully lodged cautions on the said parcels of land by trespassing into it before eviction orders were issued. I find that the applicant should be allowed to enjoy the fruits of his judgement. I find the application is merited and I grant the following orders;
1. That the caution or cautions lodge against land parcel No. South/Kabras/Shamberere/3345 by the 3rd respondent prior to 5th November 2019 be and are hereby removed.
2. No orders as to costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 27TH OCTOBER 2020.
N.A. MATHEKA
JUDGE