[2020] KEELC 1282 (KLR)
The court found that since the plaintiff's case had been dismissed for lack of merit, there was no longer a valid basis for maintaining the inhibition on the defendant's land title. The application for removal of the restriction was unopposed, and the court was satisfied that granting the order would not prejudice...
Source-derived case information.
- Citation
- [2020] KEELC 1282 (KLR)
- Parties
- Plaintiff: Teresia Aturwa Atonyi; Defendant: Fanuel M. Lihanda
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 251 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Post Judgment Application
- Outcome
- application allowed
- Judges
- NA Matheka
- Legal Topics
- Removal of Restriction, Land Title Inhibition, Post Judgment Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Aturwa Atonyi
Plaintiff
Fanuel M. Lihanda
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the restriction (inhibition) on land parcel No. Isukha/Shitoto/1420 should be removed following dismissal of the plaintiff's case.
- 2 Whether the applicant is entitled to the removal of the restriction in the interest of justice.
Ratio Decidendi
The court found that since the plaintiff's case had been dismissed for lack of merit, there was no longer a valid basis for maintaining the inhibition on the defendant's land title. The application for removal of the restriction was unopposed, and the court was satisfied that granting the order would not prejudice the respondent. The court exercised its discretion to allow the application, holding that it was merited and in the interest of justice to remove the restriction on land parcel No. Isukha/Shitoto/1420.
Court Disposition
application allowed
Orders
- The restriction entered in the register of land parcel No. Isukha/Shitoto/1420 is to be removed.
- No order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 251 OF 2017
TERESIA ATURWA ATONYI.........PLAINTIFF/ RESPONDENT
VERSUS
FANUEL M. LIHANDA....................DEFENDANT/APPLICANT
RULING
The application is dated 3rd march 2020 and seeks for the following orders:-
a. That the court be pleased to order the removal of the restriction entered in the register of land parcel No. Isukha/Shitoto/1420.
b. That costs be granted.
It is based on the annexed affidavit of Fanuel Lihanda and the grounds that the respondent/plaintiff’s case was heard and judgment was entered on the 28th day of November, 2019 where the respondent/plaintiff’s case was dismissed for lack of merit. That the respondent has maintained the inhibition placed on his land title No. Isukha/Shitoto/1420 and she is not willing to have it deregistered. That it is in the interest of justice that the application be allowed. That the respondent shall not be prejudiced in any manner. That this application has been brought in utmost good faith and in the interest of justice to all parties concerned.
This court has considered the application and the submissions therein. The application is based on the grounds that the respondent/plaintiff’s case was heard and judgment was entered on the 28th day of November, 2019 where the respondent/plaintiff’s case was dismissed for lack of merit. That the respondent has maintained the inhibition placed on his land title No. Isukha/Shitoto/1420 and she is not willing to have it deregistered. The application is not opposed. I find the application is merited and I grant the same with no orders as to costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA THIS 28TH SEPTEMBER 2020.
N.A. MATHEKA
JUDGE