[2011] KEHC 542 (KLR)
The court found that its prior judgment did not determine the proprietary rights of the parties to the suit property, and thus there was no substantive basis upon which the respondent/applicant could seek removal of the caution through the present application. Furthermore, the court held that it was functus officio,...
Source-derived case information.
- Citation
- [2011] KEHC 542 (KLR)
- Parties
- Appellant: Rodah Burudi; Respondent: Gideon Shirandula
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 66 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Chamber Summons
- Outcome
- application struck out as incompetent with costs to the appellant/respondent
- Legal Topics
- Caution Removal, Purchaser Interest, Functus Officio, Proprietory Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Rodah Burudi
Appellant
Gideon Shirandula
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Chamber Summons
Legal Issues
- 1 Whether the court is functus officio and thus barred from entertaining the application for removal of caution.
- 2 Whether the application for removal of caution is competent in light of the prior judgment.
- 3 Whether the applicant has established a legal basis for removal of the caution placed on the suit property.
Ratio Decidendi
The court found that its prior judgment did not determine the proprietary rights of the parties to the suit property, and thus there was no substantive basis upon which the respondent/applicant could seek removal of the caution through the present application. Furthermore, the court held that it was functus officio, having already delivered its judgment on the appeal, and therefore lacked jurisdiction to entertain the application. The application was deemed incompetent as it sought relief not addressed or determined in the concluded appeal, and the appropriate course would have been to file a substantive suit to resolve the underlying proprietary interests and the status of the caution.
Court Disposition
application struck out as incompetent with costs to the appellant/respondent
Orders
- The chamber summons application dated 16.2.11 is struck out as incompetent.
- Costs awarded to the appellant/respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL APPEAL NO. 66 OF 2001
(An appeal from the Decision and Ruling of Kakamega CMCC Misc. Application
No. 157 of 1999 delivered on 24/7/2001 (Mrs. R. A. Oganyo, RM)
RODAH BURUDI ………………................................……… APPELLANT/RESPONDENT
VERSUS
GIDEON SHIRANDULA ………….................................…… RESPONDENT/APPLICANT
R U L I N G
The Application by way of Chamber Summons dated 16. 2.11 seeks orders that the caution placed on “L.P. No. KAKAMEGA/CHEMUCHE/1708” be certified removed and/or withdrawn.
The application is supported by the affidavit of the Respondent/Applicant, GIDEON SHIRANDULA sworn on 16. 2.11.
The application is opposed and as per the replying affidavit of the Appellant/Respondent, RODAH BURUDI sworn on 6. 4.11.
The background of the application is that on 25. 10. 07, the Judgment on appeal herein was delivered and dismissed the appeal by the Appellant/Respondent who had sought orders made on 16. 6.1999 in the CM’s court in Kakamega Misc. Appl. No. 157/98 adopting the findings of the MALAVA LAND DISPUTES TRIBUNAL affecting land Title No. S/KABRAS/CHEMUCHE/1708 be set aside and the court’s order made on 27. 9.00 declining to entertain the verdict of the Provincial Appeals Committee proceedings be reviewed and or set aside.
The Respondent/Appellant had placed a caution on the land parcel in question on 18. 1.99 claiming a purchaser’s interest. The Respondent/Appellant contends that since the appeal herein has been decided he intends to execute documents relating to the land but the caution placed on the Land is an impediment.
The Appellant/Respondent on the other hand asserts that the court is now functus officio and cannot entertain the application herein as the Judgment on the appeal has already been delivered. It is also argued that the substantial appeal had nothing to do with the issues raised in the current Chamber Summons application and the Respondent/Applicant ought to have filed a substantive suit to seek orders for the removal of the caution. The Appellant/Respondent avers that she still holds a purchaser’s interest in the suit property which interest is yet to be addressed by the Respondent/ Applicant.
I have considered the application, the reply to the same and the submissions made by the counsels. I have also perused the Judgment herein delivered on 25. 10. 07. The said Judgment did not did not determine the proprietory rights of the parties to the said property. The appellant/Respondent seems to have lost the appeal on technicalities of procedure.
There is no determination in the said judgment on appeal upon which the Respondent/Applicant can anchor his application for the removal of the caution.
The application is therefore incompetent and the same is struck off with costs to the Appellant/Respondent.
Dated, delivered and signed at Kakamega this 15th day of November, 2011.
B. THURANIRA JADEN
J U D G E