[2001] KEHC 499 (KLR)
The court held that Section 133 of the Registered Land Act does not empower the court to remove cautions, as this is a function of the Registrar. Furthermore, once a suit is filed seeking a particular relief, it is improper to seek the same relief by way of chamber summons in the same proceedings. The applicant...
Source-derived case information.
- Citation
- [2001] KEHC 499 (KLR)
- Parties
- Plaintiff: Peter Ndungu Njenga; Defendant: John K. Ndungu & 4 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 456 of 2001
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- application dismissed
- Legal Topics
- Removal of Caution, Injunctions, Registered Land Act Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ndungu Njenga
Plaintiff
John K. Ndungu & 4 Others
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court can grant removal of cautions on land parcels by way of chamber summons when the same relief is sought in the main suit.
- 2 Whether Section 133 of the Registered Land Act empowers the court to intervene in the removal of cautions.
- 3 Whether the applicant is entitled to interlocutory relief before the main suit is determined.
Ratio Decidendi
The court held that Section 133 of the Registered Land Act does not empower the court to remove cautions, as this is a function of the Registrar. Furthermore, once a suit is filed seeking a particular relief, it is improper to seek the same relief by way of chamber summons in the same proceedings. The applicant failed to cite any legal provision or authority allowing the court to grant the relief sought through the interlocutory application. The court found no basis to grant the application and dismissed it, ordering each party to bear their own costs.
Court Disposition
application dismissed
Orders
- The chamber summons application is dismissed.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 456 OF 2001
PETER NDUNGU NJENGA …………………………… PLAINTIFF
VERSUS
JOHN K. NDUNGU & 4 OTHERS ……………………DEFENDANTS
R U L I N G
Two main prayers in the suit filed herein on 21st March, 2001 by the plaintiff against the defendants are for:-
(a) an order for the removal of cautions placed on Land Parcels Nos. LR.NGONG/NGONG/3949 and KAJIADO/NGONG/432. and
(b) an injunction perpetually restraining the defendants whether by themselves, their servants, agents or otherwise from interferring, stopping, dealing in, or in any other manner compromising the absolute right of title of the plaintiff.
Then on 18th April, 2001 the same plaintiff files an application by chamber summon under Section 133 of the Registered Land Act, Chapter 300 Laws of Kenya to apply for similar order as per prayer 1 of the suit on the grounds that the plaintiff applicant is the registered absolute owner of L.R No. NGONG/NGONG/394 and KAJIADO/NGOGN/342, that the respondents on 2. 2.2001 placed cautions prohibiting any dealings in both parcels of land claiming beneficiaries interest and that there is no suit by the respondents.
The applicant, apart from citing Section 133 of the Registered Land Act also cites sections 3 and 3A of the Civil Procedure Act which provides for a saving of special jurisdiction and orms and/or interest powers of the court.
The applicant also talks of all other enabling provisions of the law but does not say which these other provisions of law are.
Section 133 of the Registered Land Act deals with the withdrawal and removal of caution by the Registrar (see meaning in Section 3 of the Act), and has no provision of courts intervention in respect thereof.
As regards the application, I am not convinced once a suit is filed in court for this relief a party can seek the same relief by way of chamber summons.
Counsel for the applicant said nothing about this initial issue and in particular did not cite any authority or legal provision which allows to seek this relief by way of chamber summons.
At the same time, even if such provisions exist, I do not understand why the applicant should come for this relief in a hurry rather than wait for both reliefs sought in the plaint to be decided together once and for all.
I am not quite happy that full grown children should be drawing their parents into such litigations like the present one rather than busy themselves with some occupation to acquire their own property but I have no basis upon which I should consider this application in favour of the applicant.
I dismiss the same but order each party to bear his/their own costs thereof.
Delivered, dated and signed this 18th day of June, 2001.
D.K.S AGANYANYA
JUDGE