[2018] KEELC 29 (KLR)
The court found that the restriction was placed on the suit land solely to preserve it pending determination of the main suit and an interlocutory application. Since the interlocutory application lapsed and the main suit was dismissed for want of prosecution, there was no longer any legal basis for the restriction...
Source-derived case information.
- Citation
- [2018] KEELC 29 (KLR)
- Parties
- Plaintiff: Richard Michemi Mwagirua; Defendant: Erastus Njeru M’Raini
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 152 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Post Dismissal Application for Removal of Restriction
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Removal of Restriction, Land Registration, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Michemi Mwagirua
Plaintiff
Erastus Njeru M’Raini
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Dismissal Application for Removal of Restriction
Legal Issues
- 1 Whether the restriction entry number 9 against land parcel LR: KARINGANI/MUIRU/1390 should be removed following dismissal of the main suit.
- 2 Whether the plaintiff/respondent has any legal basis to maintain the restriction after the suit was dismissed.
Ratio Decidendi
The court found that the restriction was placed on the suit land solely to preserve it pending determination of the main suit and an interlocutory application. Since the interlocutory application lapsed and the main suit was dismissed for want of prosecution, there was no longer any legal basis for the restriction to remain. The court held that the plaintiff/respondent had no business retaining the restriction in the absence of an extant suit. The application for removal of the restriction was properly served and not opposed. Accordingly, the court allowed the application and ordered the removal of the restriction to give full effect to the dismissal of the suit.
Court Disposition
application allowed
Orders
- The restriction entry number 9 placed by the Land Registrar, Chuka against Land Parcel NO. KARINGANI/MUIRU/1390 be removed forthwith.
- Costs are awarded to the defendant.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 152 OF 2017
FORMERLY MERU ELC 140 OF 2012
RICHARD MICHEMI MWAGIRUA...............PLAINTIFF
VERSUS
ERASTUS NJERU M’RAINI....................... DEFENDANT
RULING
1. This application is dated 9th February, 2018. It was heard on 20th March, 2018. It seeks orders:
1. The restriction entry number 9 by the plaintiff/respondent against land parcel LR: KARINGANI/MUIRU/1390 be removed by the respondent and in default the land registrar be ordered and directed to remove the said restriction.
2. Cost of this application be provided for.
2. It is supported by the affidavit of Erastus Njeru M’Raini the applicant and has the following grounds.
a) That land parcel LR:KARINGANI/MUIRU/1390 is registered under the name of ERASTUS NJERU M’RAINI the defendant/applicant herein.
b) That to preserve the suit land pending the hearing of the application dated 25th June, 2012 and the main suit the plaintiff/respondent caused a restriction to be placed against land parcel LR:KARINGANI/MUIRU/1390.
c) That the application dated 25th June, 2012 was never heard inter partes consequently it naturally lapsed after the expiry of 14 days from the date of issuance.
d) That on 29th November the main suit was dismissed for want of prosecution.
e) That there being no suit pending the purpose for which the restriction was lodged by the respondent against land parcel LR: KARINGANI/MUIRU/1390 is spent and the restriction now serves no meaningful purpose.
f) That substantive justice of this case now demand that the plaintiff/respondent be ordered to withdraw the restriction and in default the court do direct the land registrar to remove the same.
g) That no party stands to suffer any prejudice in the event the orders sought are granted.
h) That the orders sought are the best and most apt in the circumstances.
3. Mr. I.C. Mugo, the applicant’s advocate told the court that this suit was dismissed on 29th November, 2017. As such this application was meant to fully give effect to the court’s dismissal order as the plaintiff has no business to have the restriction placed against the suit land retained when there was no extant suit against the defendant.
4. I agree. I also find that this application had been properly served upon the plaintiff’s advocate. It is not opposed.
5. In the circumstances, the application is allowed. It is ordered that the restriction entry number 9 placed by the Land Registrar, Chuka against Land Parcel NO. KARINGANI/MUIRU/1390 be removed forthwith.
6. Costs are awarded to the defendant.
7. It is so ordered.
Delivered in open court at Chuka this 20th day of March, 2018 in the presence of:
CA: Ndegwa
I.C. Mugo for the defendant/applicant
P.M. NJOROGE
JUDGE