[2012] KEHC 408 (KLR)
The court declined to rule on the application for removal of caution because there was a pending suit (Machakos HCCC 284 of 2011) involving the same land and parties, and granting the orders sought would amount to substantively determining the issues in that suit. The proper forum for any application regarding the...
Source-derived case information.
- Citation
- [2012] KEHC 408 (KLR)
- Parties
- Applicant: Ruth Monthe Ivulu; Respondent: Machakos District Land Registrar; Respondent: Godfrey Gitahi Keen
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 140 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Removal of Caution
- Outcome
- Application declined; matter to be addressed in pending suit.
- Judges
- GMA Dulu
- Legal Topics
- Removal of Caution, Pending Suit, Specific Performance, Registered Land Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ruth Monthe Ivulu
Applicant
Machakos District Land Registrar
Respondent
Godfrey Gitahi Keen
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Removal of Caution
Legal Issues
- 1 Whether the court should determine the application for removal of caution when there is a pending suit on the same land and between the same parties.
- 2 Whether granting the orders sought would amount to determining the substantive issues in the pending suit.
Ratio Decidendi
The court declined to rule on the application for removal of caution because there was a pending suit (Machakos HCCC 284 of 2011) involving the same land and parties, and granting the orders sought would amount to substantively determining the issues in that suit. The proper forum for any application regarding the removal of the caution or other necessary orders is within the pending suit, to avoid prejudicing the substantive hearing and determination of the dispute. The court directed that the pending suit be fixed for hearing at an early date and that any further applications be made therein.
Court Disposition
Application declined; matter to be addressed in pending suit.
Orders
- The application for removal of caution is not determined at this stage.
- Machakos Civil Suit No. 284 of 2011 to be fixed for hearing at an early date.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Machakos
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IN THE MATTER OF THE REGISTERED LAND ACT CAP 300 OF THE L AWS OF KENYA
IN THE MATTER OF AN APPLICATION FOR REMOVAL OF CAUTION UNDER SECTION 133 OF THE SAID ACT
BETWEEN
RUTH MONTHE IVULU …………………………………..………..………....….. APPLICANT
VERSUS
1. MACHAKOS DISTRICT LAND REGISTRAR
2. GODFREY GITAHI KEEN ………………………………………………... RESPONDENTS
R U L I N G
Though this amended Notice of Motion dated 6th July 2011 seeking the removal of a caution, came up for hearing before me on 23/5/2012, I am not in a position to give a ruling on the same because it has been brought to my attention that there is another pending suit on the same land and between the same parties, that is Machakos High Court Civil suit 284 of 2011.
Granting the orders sought in the amended Notice of Motion will be tantamount to substantively determining the pending suit which is for specific performance of a contract of sale on the subject land. Because of that reason, I will not give a ruling in this application. Instead I order that the pending suit, that is Machakos Civil Suit No. 284 of 2011 be fixed for hearing at an early date. Any application for removal of the caution or for any other necessary orders will be made in the pending suit that is Machakos HCCC 284 of 2011. I order that a copy of this ruling to be filed in HCCC 284 of 2011for guidance.
I make no orders as to costs.
Dated and delivered at Machakos this 5thday of December 2012.
………………………………………
George Dulu
Judge
In the presence of:
Mr Kasyoka holding brief for Mr Mung’ata for Applicant
N/A for Ogeto for 2nd respondent and Interested Party
Mutinda – Court clerk