[2010] KEHC 209 (KLR)
The court declined to grant the order sought by the plaintiff for removal of land restrictions at the interlocutory stage because the order would amount to a final determination of the suit before the defendants had an opportunity to present their case. The court emphasized that such final orders should only be made...
Source-derived case information.
- Citation
- [2010] KEHC 209 (KLR)
- Parties
- Plaintiff: Philip Kiprono Chebosir; Defendant: Chief Land Registrar; Defendant: Attorney General
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Case 44 of 2010
- Procedural Posture
- Civil Case / Ruling on Ex Parte Application for Removal of Land Restrictions
- Outcome
- application dismissed
- Legal Topics
- Land Restrictions, Removal of Caveats, Proprietorship Disputes, Ex Parte Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Kiprono Chebosir
Plaintiff
Chief Land Registrar
Defendant
Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Ex Parte Application for Removal of Land Restrictions
Legal Issues
- 1 Whether the court should grant a final order for removal of land restrictions at the interlocutory stage before trial.
- 2 Whether an ex parte application can dispose of the main suit where the defendants have indicated intention to defend.
Ratio Decidendi
The court declined to grant the order sought by the plaintiff for removal of land restrictions at the interlocutory stage because the order would amount to a final determination of the suit before the defendants had an opportunity to present their case. The court emphasized that such final orders should only be made after a full hearing, especially where the defendants have indicated an intention to defend. The application was therefore dismissed, and the court directed that the suit be set down for hearing to allow all parties to be heard on the substantive issues.
Court Disposition
application dismissed
Orders
- The application for removal of restrictions is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CIVIL CASE NO. 44 OF 2010
PHILIP KIPRONO CHEBOSIR .....................................................................................................PLAINTIFF
VERSUS
THE CHIEF LAND REGISTRAR..........................................................................................1ST DEFENDANT
THE ATTORNEY GENERAL...............................................................................................2ND DEFENDANT
RULING
The suit herein is pending. It was commenced on 7th July, 2010 by Philip Kiprono Chebosir as Plaintiff against the Chief Land Registrarand the Attorney General as the 1st and 2nd Defendants respectively.The Plaintiff avers in the suit that he is registered as proprietor as lesee from the Government of the Republic of Kenya for a term of 99 years from 1st August, 1996 in respect of the parcels of land tabulated in paragraph 6 of the Plaint and in prayer(a) of the Plaint. The Plaintiff alleges that on 8th August, 2000 the 1st Defendant caused to be registered against the titles to the said parcels of land restrictions to the effect that “no dealings without the consent of the Chief Land Registrar –see his letter No. KCO/A/12/Vol. II/228 of 2nd August, 2000”.It is on account of this that the Plaintiff seeks in the suit an order directing the Chief Land Registrar and Kericho District Land Registrar to remove the said restrictions.
The Attorney General went on record in this suit on 1st September, 2010 when he filed a Memorandum of appearance dated 18th August, 2010 signed by Muthoni Kimani, Senior Deputy Solicitor General.
The Plaintiff now seeks in his application dated 7th July, 2010 an order directing the Chief Land Registrar to remove the said restrictions. If the order is granted, it will effectively dispose of the suit before the suit is set down for trial. As the Defendants have indicated their intention to defend, should the court grant the order sought in the application which proceeded ex parte? The Attorney General was served on 13th August, 2010 with the application but filed neither grounds of opposition nor a replying affidavit.
Because the order sought in the application is not interlocutory, but rather a final order such as is sought in the suit which is yet to be heard, I decline to grant it. I direct that steps be taken to set down the suit for hearing. The application is dismissed. I make no order as to costs.
DATED at KERICHO this 8th day of December 2010
G.B.M. KARIUKI, SC
RESIDENT JUDGE
COUNSEL APPEARING
Mr. Oboso Advocate for the Plaintiff/Applicant
N/A by the Attorney General
Court Clerk – Mr. Bett