https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7474

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL CASE NO. 2323 OF 1983** NTOOKO OLE PAPU………………………………………………....PLAINTIFF VERSUS NATHAN KAHARA………………………………………………..DEFENDANT **RULING** 1. The Defendant, Nathan Kahara, filed this Notice of Motion dated 3/4/2026 (the Application) under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 7 of the Civil Procedure Rules seeking the following orders: 2. ***That this Honourable Court be pleased to confirm that the Prohibitory Orders issued on the 8th and 11th June, 1984 in respect of L.R No. 209/9090, Mbagathi Road stands discharged and/or be formerly lifted.*** 3. ***That this Honourable Court be pleased to order the removal and/or cancellation and/or discharge of all caveats, prohibitions or encumbrances registered against land parcel known as L. R. No. 209/9090 Mbagathi Road pursuant to the prohibitory orders issued on 8th and 11th June, 1984.*** 4. ***That the Land Registrars concerned be directed to forthwith cancel, and/or remove any entire (sic) registered against the above property pursuant to the said prohibitory orders.*** 5. ***That costs of this application be in the cause.*** 6. The Applicant has advances grounds in support of the Application as shown on the face of the Application and in the Supporting Affidavit sworn on 3/3/2026. 7. The gist of the grounds supporting the Application is that this Court issued prohibitory orders dated 8th and 11th June 1984 in respect of L.R No. 209/9090 (subject property); that this matter is fully settled through a consent of the parties; that pursuant to the said consent, this Court issued orders lifting the prohibitory orders in respect of L. R. No. 5/47, Waiyaki Way but the prohibitory orders in respect of the subject property remain registered and that this continued subsistence of the said prohibitory orders is inadvertent, irregular and unjustified given that the substratum of the suit no longer exists. 8. Further, the Applicant has stated that he is sick and in need of funds to cater for hospital bills; that he is unable to sell the subject property to acquire the needed funds due to the existing prohibitory orders, although he has found a buyer ready to buy the subject property. 9. The Applicant has filed a Further Affidavit sworn 15th April 2026 in response to this court’s request for more information regarding this application. In that Further Affidavit, it is deposed that the Plaintiff caused to be registered a prohibitory order against LR No.209/9090 belonging to the Defendant as a mode of execution for the recovery of the balance of Kshs 280,00 which the Defendant has settled. He deposed that he was not aware of the prohibitory order until he conducted a search on the property. 10. The Defendant further stated that he had cleared all the balance in respect of this case and on that basis, a consent was entered and adopted by this court as its order; that he however realized that the said consent had omitted the LR No. 209/9090. **Submissions** 1. The Applicant filed submissions in which he has raised the following issue for determination: whether this Honourable Court should lift and/or cancel the prohibitory order registered against L.R. No. 209/9090. 2. In addressing that issue, it was submitted that a prohibitory order is one of the processes of execution under Order 22 of the CPR. The Applicant cited **Wilfred Mbingiritu Njiru v Tabitha Ciorui Kamucere [2021] KEELC 1534 (KLR)** to support his argument for the lifting of the prohibitory order. 3. The Applicant submitted that the decretal sum in this case was not only fully settled but there was an overpayment; that a consent order was recorded on 7/8/2006 by both parties marking the matter as fully settled and the file was closed and archived; that the lifting of the prohibitory order was inadvertently omitted; that the prohibitory order lost its legal foundation and cannot lawfully subsist and that the continued existence of the prohibitory order long after settlement is a violation of the Applicant’s constitutional right to own property. 4. The Applicant cited Section 3A of the CPA and urged this court to invoke its inherent powers donated to the court by that section and make such orders as may be necessary for the ends of justice to be met. **Determination** 1. I have considered this application. The application is not opposed. The Respondent, who was the Plaintiff in the main suit, did not file any documents to oppose the application. 2. I must put it on record the difficulty faced by this court in handling this matter. The reasons for those difficulties emanate from the age of this matter and the obvious state of this matter that the Applicant did not move the court for that period of time. Secondly, the court was faced with a consent order that obviously omitted to mention L.R No. 209/9090. The question running through my mind was why should anyone enter a consent and omit one property and take that length of time before moving the court to vacate the prohibition order. 3. Land in Kenya is a delicate and sensitive property. Any decision taken in respect to a dispute where land is the subject matter must be handled with care to avoid prejudice to any party. Indeed, it is for this reason that I told counsel appearing for the Applicant that this court lacked jurisdiction to handle the matter. It is only after counsel assured the court that ownership of the subject land was not the issue and that the issue was that of execution of a civil debt where a prohibition order was registered against the land. 4. I read the court file and noted that the suit was based on an agreement at a time when the Civil Division (Court) was the only avenue for parties to pursue their rights of civil nature. I also noted that the prohibition was registered as a mode of execution of a decree. 5. The third challenge facing the court was that the Respondent, who was the original Plaintiff, did not attend court nor did his counsel. Indeed, this court insisted on service of the Respondent and/or his advocate. Mr. Kihara and Mr. Thuo, both representing the Applicant, were turned away on numerous occasions to serve the documents and mention/hearing notices until the court was satisfied that service was effected personally and acknowledged by stamping on the return copy of the served documents by M/s Machira & Company Advocates, who represented the Plaintiff and who signed the consent dated 7/8/2006. 6. I have read the court file. It is an old file, showing that the dispute was concluded and the file closed and archived. With difficulty, I established as follows: The record shows that the prohibition issued on 8/6/1984 relates to LR No. 5/47, Waiyaki Way, whose prohibition order was previously lifted vide the consent dated 7/8/2006, resulting in court order to that effect dated 10/8/2006. As the record stands, no prohibition order was issued on 8/6/1984 in respect of LR. No. 209/9090. The prohibition order issued on 11/6/1984 relates to LR No. 209/9090 and another prohibition order of the same date (11/6/1984) was issud in respect of L. R. No. 37334/232 West. 7. My concern was why it took the Applicant almost 20 years to realize that there existed a prohibition order against his property. He has attempted to explain that the property, L.R No. 209/9090 was omitted in the consent adopted as a court order through inadvertence of counsel because there is not reason why this prohibition order should exist given that the matter has been settled. 8. I have read the consent order dated 7/8/2006 signed by the parties and adopted by the court as a court order. The consent signed by the parties is worded as follows: **CONSENT** ***Kindly record the following Orders by consent:-*** ***“1. That the prohibition Order herein registered against L. R. No. 5/4/Volume N. 34 Folio 472 II Dukw 10941 be and is hereby lifted.*** ***2. That the suit herein be and is hereby marked as settled.”*** ***DATED at Nairobi this 7th August 2006.*** 1. The consent is signed by Machira & Company, Advocates for the Plaintiff and K. Mwaura & Company, Advocates for the Defendant. The Defendant has since changed counsel to the current ones on record. 2. Without opposition to this application, this court has nothing else, other than what the Applicant has stated, to base its findings on. The application therefore stands unchallenged. 3. Consequently, I am persuaded that the Applicant has satisfied this court that he deserves the orders sought as the court will grant. I have examined the orders sought. I find difficulty in granting the orders as drawn for the reasons that this court did not benefit from evidence supporting some of the orders sought. I will, and do hereby, allow the Notice of Motion dated 3/3/2026 and issue the following orders: 4. ***That the prohibition order dated 11th June 1984 in respect of L.R. No. 209/9090, Mbagathi Road, in respect of this dispute be and is hereby lifted.*** 5. ***The Land Registrar concerned with this matter be and is hereby directed to forthwith cancel/or remove the prohibition order registered against L.R. No. 202/9090 Mbagathi Road pursuant to the above prohibition order registered in relation to this dispute.*** 6. ***Costs of this application shall be borne by the Applicant.*** 7. ***I decline to grant prayer 2 of the Application for the reason that it is too general and may affect other encumbrances, should there be any, that may apply to this land outside the dispute herein.*** 8. It is so ordered. **Dated, signed and delivered this 6th day of May 2026.** **S. N MUTUKU** **JUDGE**