[2020] KEELC 2929 (KLR)
The court held that the caution in question was lodged after the suit had abated and was therefore not related to the proceedings of the abated suit. The applicant, not being a party to the original suit, lacked locus standi to seek removal of the caution in these proceedings. Furthermore, the statutory procedure...
Source-derived case information.
- Citation
- [2020] KEELC 2929 (KLR)
- Parties
- Plaintiff: Suresh Kundan Wason; Defendant: Satish Kundan Wason; Respondent: Milliam Karimi Mwaniki; Respondent: The District Lands Registrar Meru Lands Registry; Applicant: Reshma Shahio Suriya
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 60 of 2002
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Removal of Caution
- Outcome
- application dismissed
- Legal Topics
- Removal of Caution, Land Registration, Abated Suit, Party Status, Civil Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Suresh Kundan Wason
Plaintiff
Satish Kundan Wason
Defendant
Milliam Karimi Mwaniki
Respondent
The District Lands Registrar Meru Lands Registry
Respondent
Reshma Shahio Suriya
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Removal of Caution
Legal Issues
- 1 Whether the caution on land parcel Ntima/Igoki/9245 can be removed through the present application in this abated suit.
- 2 Whether the applicant has locus standi to seek removal of the caution in this suit.
- 3 Whether the statutory procedure for removal of a caution under the Land Registration Act was followed.
Ratio Decidendi
The court held that the caution in question was lodged after the suit had abated and was therefore not related to the proceedings of the abated suit. The applicant, not being a party to the original suit, lacked locus standi to seek removal of the caution in these proceedings. Furthermore, the statutory procedure for removal of a caution under Section 73 of the Land Registration Act was not followed. The application was therefore incompetent and could not be entertained in a suit that no longer existed.
Court Disposition
application dismissed
Orders
- The application dated 20.2.2020 is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MERU
ELC CASE NO. 60 OF 2002
IN THE MATTER OF REMOVAL OF CAUTION OVER ALL THAT PARCEL OF LAND KNOWN AS NTIMA/IGOKI/9245
AND
IN THE MATTER OF THE LAND REGISTRATION ACT NO. 3 OF 2012
BETWEEN
SURESH KUNDAN WASON....................PLAINTIFF/1ST RESPONDENT
VERSUS
SATISH KUNDAN WASON.............................DEFENDANT/APPLICANT
MILLIAM KARIMI MWANIKI....................................2ND RESPONDENT
THE DISTRICT LANDS REGISTRAR MERU
LANDS REGISTRY.........................................................3RD RESPONDENT
AND
RESHMA SHAHIO SURIYA.................................EXPARTE APPLICANT
RULING
1. This application dated and 20. 2.2020 was filed Ex=Parte by one RESHMA SHAHIO SURIYA to have the caution lodged on land parcel No. Ntima/Igoki/9245 removed. Counsel for the applicant informed the court that the suit was closed on 18. 12. 2017 and that the caution had been placed during the subsistence of the suit and that is why the application was made exparte.
2. I have keenly perused this file where it has emerged that the caution in question marked as “RSS3” was lodged on 21. 5.2019. It was therefore not lodged during the subsistence of this suit. There is a statutory mechanism provided for the removal of a caution- See Section 73of the LandRegistrationAct.
3. Section 34 (1) of theCivilProcedureAct provides that;
“All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit”.
4. In the present case, no evidence has been adduced to indicate that the issue of the caution had arisen during the subsistence of the suit, rightly so because the caution was lodged when this suit was no longer in existence. The removal of the caution should therefore be in independent proceedings and not in this suit which no longer exists.
5. Further, I note that as at the time the plaintiff died on 23. 2.2011, the parties to this suit were SURESH KUNDAN WASON (Deceased plaintiff) vs SATISH KUNDAN WASON (Defendant). The suit abated one year after the death of the plaintiff and it was not revived. The applicant appears to have been a party in another suit MERU H.C.C.C NO.13 OF 2019,but this court has not been told whether that suit and the present suit (MERU ELC 60 OF 2002) were consolidated. Who then is the applicant. When did she become a party in this suit? I can only conclude that the applicant is a stranger to this case.
6. In the final analysis, I proceed to dismiss this application dated 20. 2.2020 with no orders as to costs.
DATED, SIGNED AND DELIVERED AT MERU THIS 30TH DAY OF APRIL, 2020
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this ruling was given to the parties at the conclusion of the hearing and by a fresh notice by the Deputy Registrar. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE