[2016] KEELC 91 (KLR)
The court declined to grant the orders sought by the applicant because it was not satisfied that proper service of the hearing notice had been effected upon the respondents. The court emphasized that, although the respondents had been served with the application itself, there was no evidence that they had been...
Source-derived case information.
- Citation
- [2016] KEELC 91 (KLR)
- Parties
- Applicant: Samuel Mwangi Kamami; Respondent: Daniel Muchiri Mwangi; Respondent: Mary Njeri Mwaniki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 8 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application
- Outcome
- Application declined due to improper service.
- Judges
- L Waithaka
- Legal Topics
- Removal of Caution, Land Registrar Powers, Service of Process, Title Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Mwangi Kamami
Applicant
Daniel Muchiri Mwangi
Respondent
Mary Njeri Mwaniki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicant is entitled to orders compelling the Land Registrar to remove cautions lodged by the respondents on the suit properties.
- 2 Whether proper service of the hearing notice was effected upon the respondents.
Ratio Decidendi
The court declined to grant the orders sought by the applicant because it was not satisfied that proper service of the hearing notice had been effected upon the respondents. The court emphasized that, although the respondents had been served with the application itself, there was no evidence that they had been served with the hearing notice for the date the application was to be heard. The right to be heard is fundamental, and the court cannot make adverse orders against a party who has not been properly notified of the hearing. The applicant was directed to take another hearing date and ensure proper service of the hearing notice upon the respondents.
Court Disposition
Application declined due to improper service.
Orders
- The applicant is directed to take another hearing date for the application and effect service of the hearing notice upon the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NYERI
MISC. ELC NO. 8 OF 2014
(FormerlyNYERI HCMISC. APPL. NO. 41 OF 2014)
SAMUEL MWANGI KAMAMI....................................APPLICANT
-VERSUS-
DANIEL MUCHIRI MWANGI..........................1ST RESPONDENT
MARY NJERI MWANIKI................................2ND RESPONDENT
RULING
1. This ruling is on the application dated 13th June, 2014 where the applicant seeks orders to compel the Land Registrar, Nyeri to remove the cautions lodged against Title Number Iriaini/Kiaguthu/593andTitle Number Mweiga/Block 5/Muthuini/413(hereafter referred to as the suit properties) and that costs of the application be provided for.
2. The application is premised on the grounds on it's face, and is supported by the affidavit sworn by the applicant on13th June, 2014. He depones that the respondents (Daniel Muchiri Mwangi and Mary Njeri Mwangi) are his children who have lodged cautions on the suit properties. As a result, he is unable to sell part of the suit properties to cater for his medication as he suffers from diabetes and hypertension. He has annexed copies of certificate of official searches marked SMK 1(a) and SMK 1(b), a letter by Patrick Gichuki, the officer in charge of Kabati Dispensary and receipts of medical expenses incurred, all marked SMK2.
3. The application was heard on 3rd March, 2016. The applicant, who was unrepresented, reiterated the contents of his pleadings, prayed that he be granted the orders he sought and that he be allowed to subdivide the suit properties among his children to enable them cultivate their respective portions.
4. The application is not unopposed. The respondents did not attend court or respond to the application despite being duly served. In an affidavit of service sworn on 26th September 2014 by Teobold Maina Kahia, a licensed process server, he depones that he served the 2nd respondent with copies of the Notice of Motion who accepted service on her behalf and on behalf of the 1st respondent (who is her son) but she declined to sign on the return copy.
5. Joseph Githinji Nderi, a licensed process server in his affidavits of service dated 26th January, 2016and 3rd March, 2016respectively, depones that he again served copies of the application upon the respondents on 19th January, 2016 and 25th February, 2016.
6. The court record reveals that a hearing date was taken by the applicant on 2nd February, 2016. From the affidavit of service filed by Joseph Githinji Nderi,it appears that the respondents were not served with hearing notices for the application coming up on 3rd March, 2016 but were instead served again with the motion.
7. I am not satisfied that proper service was effected upon the respondents and I decline to grant the orders sought. I direct the applicant to take another hearing date for the application and effect service of the hearing notice upon the respondents.
Dated, signed and delivered in open court at Nyeri this 23rd day of November, 2016.
L N WAITHAKA
JUDGE
In the presence of:
N/A by the applicant
N/A by the respondents
Court clerk - Esther