[2019] KEELC 2360 (KLR)
The court determined that since the main suit had already been dismissed, it lacked jurisdiction to entertain further applications regarding the suit land, including the removal of cautions. The court emphasized that the appropriate procedure for removal of a caution is provided under section 73 of the Land...
Source-derived case information.
- Citation
- [2019] KEELC 2360 (KLR)
- Parties
- Petitioner: Sevelina Kairigo M'Miriti; Petitioner: Agnes Nyai Samuel; Respondent: Japhet Miriti M'Mwengwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition 29 of 2014
- Procedural Posture
- Constitutional Petition / Ruling on Application for Removal of Caution
- Outcome
- application dismissed
- Legal Topics
- Removal of Caution, Land Registration, Procedure for Caution Removal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sevelina Kairigo M'Miriti
Petitioner
Agnes Nyai Samuel
Petitioner
Japhet Miriti M'Mwengwa
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Removal of Caution
Legal Issues
- 1 Whether the court has jurisdiction to entertain an application for removal of caution after the suit has been dismissed.
- 2 Whether the respondent should follow statutory procedure under the Land Registration Act for removal of caution.
Ratio Decidendi
The court determined that since the main suit had already been dismissed, it lacked jurisdiction to entertain further applications regarding the suit land, including the removal of cautions. The court emphasized that the appropriate procedure for removal of a caution is provided under section 73 of the Land Registration Act, and the applicant must pursue that statutory route rather than seeking relief through the dismissed suit. As there was no longer a live suit before the court, the application for removal of caution could not be entertained, and the file was ordered closed.
Court Disposition
application dismissed
Orders
- The application dated 19.4.2018 is dismissed with no orders as to costs.
- The file is marked as closed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
PETITION NO. 29 OF 2014
IN THE MATTER OF ARTICLE 23 AND 27 OF THE CONSTITUTION OF KENYA 2010
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL
RIGHTS AND FREEDOMS PURSUANT TO ARTICLE 23 & 27
OF THE CONSTITUTION OF KENYA 2010
BETWEEN
SEVELINA KAIRIGO M’MIRITI & AGNES NYAI SAMUEL....PETITIONER
VERSUS
JAPHET MIRITI M’MWENGWA.................................................RESPONDENT
RULING
1. The application before me is dated 19. 4.2018 filed by the respondent in the petition, where the said respondent is seeking orders for removal of the cautions lodged against L.R Abogeta/Lower Chure/210 (the suit land) and that costs of the application be provided for.
2. In support of the application, respondent avers that, he is the registered owner of the suit land, but this land was cautioned by his son in year 2001 but the son died on 13. 7.2016 hence the caution does not serve any purpose. He further states that the 1st petitioner also cautioned the land in 1997 and hence the same ought to be removed since there is no appeal.
3. The application is opposed vide the replying affidavit of the petitioner where it is averred that she has already filed a notice of appeal against the ruling of the court which ordered the dismissal of the suit. She avers that if the caution is removed, the applicant (Japhet Miriti) will sell the land.
4. I have gone through the record and I find that the suit was dismissed vide the ruling dated 13. 12. 2017. Both apposite parties have availed certificate of searches for the suit land which indicates that Sevelina (1st petitioner) had cautioned the land on 22. 5.1997 while one Eliphas Mbae Miriti cautioned the land on 18. 6.2001.
5. This suit was filed on 18. 9.2014. It follows that the cautions were not lodged during the subsistence of the suit. This court has no mandate to conduct further proceedings when there is no suit.
6. The applicant ought to follow the laid down legal procedures set out under section 73 of the land registration act to have the cautions removed otherwise the court cannot entertain further proceedings herein when there is no suit.
7. The application dated 19. 4.2018 is hence dismissed with no orders as to costs. The file is marked as closed.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 17TH DAY OF JULY, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Miss Njenga for petitioner
Ogoti holding brief for Kiogora for respondent
HON. LUCY. N. MBUGUA
ELC JUDGE