[2004] KEHC 1264 (KLR)
The court held that Section 133(1) of the Registered Land Act expressly provides that a caution may be removed by the court, and does not require an applicant to first seek removal from the Land Registrar before approaching the court. The argument that the court was functus officio or lacked jurisdiction was...
Source-derived case information.
- Citation
- [2004] KEHC 1264 (KLR)
- Parties
- Appellant: Wanjiku Wanjara; Appellant: Francis Boro Wanjara; Appellant: Teresia Njoki Wanjara; Respondent: John Wanyoike Wanjara
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 284 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- ARM Visram
- Legal Topics
- Removal of Caution, Jurisdiction of High Court, Registered Land Act, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wanjiku Wanjara
Appellant
Francis Boro Wanjara
Appellant
Teresia Njoki Wanjara
Appellant
John Wanyoike Wanjara
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the High Court is functus officio in relation to the application for removal of caution.
- 2 Whether the High Court has jurisdiction to entertain an application for removal of caution under the Registered Land Act.
- 3 Whether the applicant must first apply to the Land Registrar before approaching the High Court.
Ratio Decidendi
The court held that Section 133(1) of the Registered Land Act expressly provides that a caution may be removed by the court, and does not require an applicant to first seek removal from the Land Registrar before approaching the court. The argument that the court was functus officio or lacked jurisdiction was rejected as being without legal basis. The High Court's original and unlimited jurisdiction is not ousted by the procedures under the Registered Land Act. Accordingly, the preliminary objection was dismissed as wholly untenable and lacking merit.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs to the applicant/appellant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI(MILIMANI LAW COURTS)
CIVIL APPEAL 284 OF 2000
WANJIKU WANJARA ……………………..………… )
FRANCIS BORO WANJARA ……………..…………. ) APPELLANTS
TERESIA NJOKI WANJARA ………….……………. )
VERSUS
JOHN WANYOIKE WANJARA ………………………. RESPONDENT
RULING
At the commencement of the hearing of the Notice of Motion dated 30th June, 2004, Counsel for the Respondent raised a Preliminary Objection as per his Notice of Preliminary Objection dated 21st July, 2004 on the following grounds:
1. THAT the said ap plication lacks any basis as this Honourable Court is functus officio.
2. THAT this Honourable Court does not have the jurisdiction to entertain such an application in view of the provisions of the Registered Land Act, Cap 300, Laws of Kenya.
3. THAT the orders sought by the appellant/applicant ought first to be requested for at the appropriate Land Registrar’s office as required by law.
4. THAT by this Honourable Court entertaining such an application the same will amount to infringing on a party’s guaranteed const itutional right to be heard. Counsel for the Respondent argued that under Section 133 (2) of the Registered Land Act, Cap 300, the Applicant must first apply to the Land Registrar to remove the caution registered against the suit land, and only after the Registrar has determined the same, may an applicant apply to the High Court.
This argument is wholly untenable, and without any basis in law. Section 133 (1) of the Registered Land Act clearly outlined the methods by which a Caution may be removed.
It states as follows:
“133 (1) A Caution may be withdrawn by the cautioner or removed by the Court or subject to subsection (2) by order of the Registrar.” (underlining mine).
In any event, this Court’s original and unlimited jurisdiction cannot be ousted by any other procedure.
Accordingly, the Preliminary Objection is dismissed with costs to the Applicant/Appellant.
Dated and delivered at Nairobi this 13th day of October, 2004.
ALNASHIR VISRAM
JUDGE