[2019] KEELC 4931 (KLR)
The court found that since the judicial review application had been dismissed and no substantive steps had been taken by the ex-parte applicant to prosecute the appeal or obtain interim orders, there was no legitimate basis to continue the caution on the suit property. The mere filing of a notice of appeal, without...
Source-derived case information.
- Citation
- [2019] KEELC 4931 (KLR)
- Parties
- Applicant: Republic; Respondent: The Hon. The Attorney General; Respondent: District Land Dispute Tribunal Embu West; Respondent: Chief Magistrate Embu; Interested Party: John Nthiga Zacharia; Ex Parte Applicant: Daniel Njagi (As Legal Representative of Paul Njagi Kapingazi (Deceased))
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Judicial Review Appeal 39 of 2014
- Procedural Posture
- Judicial Review / Ruling on Post Judgment Notice of Motion to Lift Caution
- Outcome
- Application allowed; caution to be lifted; costs to ex-parte applicant.
- Legal Topics
- Removal of Caution, Land Ownership Disputes, Judicial Review Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
The Hon. The Attorney General
Respondent
District Land Dispute Tribunal Embu West
Respondent
Chief Magistrate Embu
Respondent
John Nthiga Zacharia
Interested Party
Daniel Njagi (As Legal Representative of Paul Njagi Kapingazi (Deceased))
Ex Parte Applicant
Procedural Posture
Judicial Review / Ruling on Post Judgment Notice of Motion to Lift Caution
Legal Issues
- 1 Whether the caution or restriction registered against Title No. Gaturi/Nembure/307 should be lifted following the dismissal of the judicial review application.
- 2 Whether the filing of a notice of appeal without further steps justifies maintaining the caution.
- 3 Whether the ex-parte applicant's lack of alternative land is a valid ground to retain the caution.
Ratio Decidendi
The court found that since the judicial review application had been dismissed and no substantive steps had been taken by the ex-parte applicant to prosecute the appeal or obtain interim orders, there was no legitimate basis to continue the caution on the suit property. The mere filing of a notice of appeal, without more, does not entitle the ex-parte applicant to retain the caution. Furthermore, personal hardship or lack of alternative land is not a sufficient legal ground to override the proprietary rights of the registered owner, especially after the conclusion of litigation. The interested party, as the registered owner and successful litigant, is entitled to deal with the property...
Court Disposition
Application allowed; caution to be lifted; costs to ex-parte applicant.
Orders
- The Land Registrar is ordered to lift the caution or restriction registered against Title No. Gaturi/Nembure/307.
- The ex-parte applicant shall bear the costs of the application.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT EMBU
E.L.C. JUDICIAL REVIEW 39 OF 2014
IN THE MATTER OF THE LAW REFORM ACT, CHAPTER 26 OF THE LAWS OF KENYA
IN THE MATTER OF DISTRICT LAND DISPUTE TRIBUNAL
IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND PROHIBITION
REPUBLIC................................................................................................APPLICANT
VERSUS
THE HON. THE ATTORNEY GENERAL................................1ST RESPONDENT
DISTRICT LAND DISPUTE TRIBUNAL EMBU WEST......2ND RESPONDENT
CHIEF MAGISTRATE EMBU..................................................3RD RESPONDENT
AND
JOHN NTHIGA ZACHARIA................................................INTERESTED PARTY
DANIEL NJAGI (As Legal Representative of
Paul Njagi Kapingazi (Deceased)........................................EX-PARTE APPLICANT
RULING
1. By a notice of motion dated 7th August 2018 brought under section 3 and 3A of the Civil Procedure Actand all other enabling provisions of the law, the interested party, John Nthiga Zacharia, sought an order for the Land Registrar to lift the caution or restriction registered against Title No. Gaturi/Nembure/307 (hereinafter the suit property).
2. The said application was based upon the grounds enumerated on the face of the motion. It was contended that the interested party was the registered owner of the suit property and that he was the successful party in the litigation which was concluded by the judgement of this court dated 26th July 2018. He was, however, unable to deal with the suit property as he wished due to the existing encumbrance.
3. The said application was supported by an affidavit sworn by the interested party on 7th August 2018 in which he reiterated the grounds set out in the motion. He annexed to the supporting affidavit copies of the certificate of official search for the suit property, the decree dated 26th July 2018 and a copy of the death certificate of the original applicant in the judicial review application.
4. The said application was opposed by the ex-parte Applicant, Daniel Njeru Njagi, who filed a replying affidavit sworn on 5th October 2018. The main grounds of opposition were that the ex-parte Applicant had filed a notice of appeal against the decree dated 26th July 2018; that if evicted he had nowhere else to go; and that he needed a grace period of at least one year to purchase alternative land.
5. When the said application was listed for hearing on 8th October 2018, the interested party prosecuted the same orally whereas Mr. P.N. Mugo opposed the same on the basis of the replying affidavit on record.
6. The court has considered the interested party’s said application and the ex-parte applicant’s opposition thereto. The court has also considered the respective oral submissions of the parties.
7. The court has noted that the application for judicial review was dismissed on 26th July 2018 by this court. Although the ex-parte Applicant appears to have filed a notice of appeal against the said judgement and decree, no steps have been taken towards prosecution of the said appeal or even towards seeking some interim orders from the Court of Appeal. As things stand now, there is no legitimate reason to maintain the existing caution against the suit property.
8. The mere fact that the ex-parte Applicant may not have alternative land cannot be a good reason for maintaining the caution against the suit property. He knew all along of the pending litigation and of the possibility of either succeeding or losing in the litigation. In any event, there is no guarantee that he would succeed on appeal.
9. The upshot of the foregoing is that the court finds merit in the interested party’s notice of motion dated 7th August 2018 and the same is hereby allowed in terms of order No. 1 thereof. The ex-parte Applicant shall bear the costs of the application.
10. It is so decided.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this31STday ofJANUARY, 2019.
In the presence of the Ex-parte Applicant and the Interested Party and in the absence of the Respondents.
Court clerk Mr Muinde
Y.M. ANGIMA
JUDGE
31. 01. 19