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ELCPartially AllowedNot stated in judgment· [2017] KEELC 1479 (KLR)

Charles Kinyua Bernard v Ruth Kaari Ntwiga [2017] KEELC 1479 (KLR)

High Court of Kenya
16 October 2017
PNP.M. Njoroge
763 words in judgment
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The bottom line

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The High Court removed restrictions on Benard's Chogoria land because the underlying appeal had been dismissed, leaving no legal basis for the encumbrances.

What this practically means

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Executive summary

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This ruling of the High Court at Chuka dealt with two applications arising after the dismissal of the civil appeal in the suit on 3.10.2016. The first application, dated 21st February 2017 and supported by the affidavit of Charles Kinyua Benard, sought the removal and lifting of orders of restriction registered against his parcel of land, L.R. NO. MWIMBI/CHOGORIA/376. The applicant deponed that he was the registered proprietor, that no case was pending over the land, and that the restriction had been registered on 3.10.2011 following the finalization of Chuka Law Courts Criminal Case No. 1357 of 2009 on 7.10.2011; the restrictions had accordingly been spent. The second application, dated 10.7.2017 and filed by the firm of M/S I.C. Mugo & Co. Advocates, sought leave to cease acting for the respondent, who had not attended the firm's office or given instructions for over a year. The court, per P.M. Njoroge J, found merit in the applicant's application, holding that with the appeal dismissed there was no basis for the continuation of the restrictions. The court ordered that any orders of restriction and any other orders of inhibition registered against the parcel be lifted and removed forthwith, and awarded costs to the applicant. The advocate's application to cease acting was rendered superfluous, and the file was marked as heard and determined and closed.

Key legal issues

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01

Whether restrictions on the applicant's land should be removed

Holding

The restrictions were lifted and removed forthwith

Reasoning

The applicant is the registered proprietor of L.R. NO. MWIMBI/CHOGORIA/376. The appeal in the suit had already been dismissed on 3.10.2016, meaning there was no pending case over the land. The restriction had been registered on 3.10.2011 following the finalization of Chuka Law Courts Criminal Case No. 1357 of 2009 on 7.10.2011. With the appeal concluded, the court found the restrictions had been spent and there was no basis for their continuation, warranting their removal.

p. 2

Legal principles established

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  • Where an appeal has been dismissed and no case is pending over the land, restriction orders registered against the parcel lose their basis and ought to be lifted

Court orders

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  1. 1.Any orders of restriction and any other orders whether of inhibition or whatsoever registered against land parcel L.R. NO. MWIMBI/CHOGORIA/376 be lifted and removed forthwith
  2. 2.Costs of the application dated 21st February, 2017 awarded to the applicant
  3. 3.The matter be marked as heard and determined and the file be closed
On appeal from
null
Jurisdiction invoked
Original civil jurisdiction of the High Court at Chuka over land restrictions; the underlying appeal was already dismissed on 3.10.2016

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, "Charles Kinyua Bernard v Ruth Kaari Ntwiga [2017] KEELC 1479 (KLR)", Case Analysis (2017). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1479/eng@2017-10-16

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