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ELCAllowedNot stated in judgment (application dated 20th May 2013)· [2017] KEELC 220 (KLR)

Joseph Kaburu v M’Arimi Kamuru [2017] KEELC 220 (KLR)

Environment and Land Court
4 October 2017
LML.N. MBUGUA
413 words in judgment
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The bottom line

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Kenya's Environment and Land Court cleared a land title of decades-old, unexplained cautions and prohibitory orders so a winning party could finally enforce their judgment.

What this practically means

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Executive summary

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The Applicant, a judgment creditor, moved the Court by Notice of Motion dated 20th May 2013 seeking lifting of all registrations, prohibitory orders, inhibitions and/or cautions registered against L.R No. Lower Abothuguchi/Makandune/724, with costs in the cause. Judgment had been delivered in his favour on 30/04/2010 and a decree extracted on 20/12/2011, but execution was impossible because the title was encumbered by a prohibitory order arising from Meru SRMCC No. 115 of 1979 - a case to which the judgment debtor was not a party and whose file could not be traced - a restriction by the Land Registrar pending Nyeri SRMCC No. 143 of 1980, a file long disposed of under Gazette Notice 4034 of 16/4/2010, and a caution whose cautioner had himself applied to withdraw it. The application was served but no response was filed. The court found the application meritorious, holding that the judgment of 30/04/2010 related to the same parcel and that the orders sought would facilitate execution of that judgment. The court allowed the application and ordered that all prohibitory orders, restrictions, cautions and inhibitions over the parcel be lifted forthwith, with costs in the cause. Delivered at Meru on 4th October 2017 by Hon. L.N. Mbugua, ELC Judge, parties absent.

Key legal issues

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01

Whether unexplained and stale encumbrances (prohibitory order, restriction, caution) blocking execution of a decree should be lifted

Holding

Yes; the application was unopposed and the encumbrances frustrated execution of a judgment over the same parcel

Reasoning

The applicant obtained judgment on 30/04/2010 and extracted a decree on 20/12/2011, but could not execute because the title carried a prohibitory order from Meru SRMCC No. 115 of 1979, a restriction pending Nyeri SRMCC No. 143 of 1980 (a file long disposed of by Gazette Notice 4034 of 16/4/2010), and a caution whose cautioner had applied to withdraw it. The judgment debtor was not even a party to the 1979 case. The application was served but no response was filed. The court found the orders would facilitate execution of the judgment over the same parcel.

p. 1

Legal principles established

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  • A court may lift encumbrances such as prohibitory orders, restrictions and cautions on a title where they render execution of a judgment-decree impossible

Court orders

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  1. 1.All registrations, prohibitory orders, inhibitions and/or cautions registered against L.R No. Lower Abothuguchi/Makandune/724 lifted forthwith
  2. 2.Costs in the cause
Jurisdiction invoked
Not stated in judgment; the Environment and Land Court seized of the suit in which the decree was issued

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Kaburu v M’Arimi Kamuru [2017] KEELC 220 (KLR)", Case Analysis (2017). Not stated in judgment (application dated 20th May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/220/eng@2017-10-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.