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ELCAllowedNotice of Motion dated 9th January 2016 (in the suit filed 17th October 2014)· [2017] KEELC 2057 (KLR)

Wairimu Kimani v Joseph Mburu Kimani [2017] KEELC 2057 (KLR)

Environment and Land Court
28 July 2017
BOB.N. Olao
778 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court ordered a mother's blocks on her son's land removed because her claim had failed and she never appealed.

What this practically means

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Executive summary

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Wairimu Kimani sued her son, Joseph Mburu Kimani, on 17th October 2014, claiming that his registration as proprietor of nine parcels in the Gichugu Settlement Scheme (Nos. 4806-4814) was held in trust for her, and sought cancellation of the registration so the land would revert to the original parcel No. 835. That suit was dismissed on 4th November 2016, with no appeal or stay of execution filed. The applicant then moved the court by Notice of Motion dated 9th January 2016 seeking the lifting of the cautions and restrictions the respondent had placed on the suit properties. Though the application cited no statutory provision, the court held the omission not fatal under Order 51 Rule 10 of the Civil Procedure Rules. The respondent opposed through a replying affidavit dated 27th March 2017, asserting that other beneficiaries (James Muthike, John Maraka and Peter Kariuki Kimani) depended on the land and had filed Kerugoya ELC Case No. 23 of 2017 claiming adverse possession of 7.525 acres of parcel 834. The respondent did not attend the hearing on 13th July 2017, and the court relied on the rival affidavits. Applying Section 70 of the Land Registration Act, the court held that since the respondent's claim had been dismissed with no appeal, her inhibitions could not continue to encumber the properties. It noted parcel 834 was never the subject of this suit and that the plaintiffs in that case could lodge their own inhibitions. The court allowed the motion, ordered removal of all the respondent's inhibitions forthwith, and made no order as to costs.

Key legal issues

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01

Whether the Respondent's inhibitions on the suit properties should be lifted

Holding

Yes - the dismissal of the Respondent's claim, with no appeal filed, leaves no basis for the inhibitions to remain

Reasoning

The Applicant is the registered proprietor of the suit properties and the Respondent's trust claim was dismissed on 4th November 2016 with no appeal or stay of execution. The Respondent's opposition rested on the interests of third parties who have filed their own suit, Kerugoya ELC Case No. 23 of 2017, concerning a different parcel (834). Those plaintiffs are entitled to lodge their own inhibitions if they have interests; the Respondent's own inhibitions cannot stand.

p. 2
02

Whether the third parties' adverse possession suit justifies retaining the inhibitions

Holding

No - parcel 834 was never the subject of this suit, and the third parties can place their own inhibitions if necessary

Reasoning

The Respondent relied on an Originating Summons in Kerugoya ELC Case No. 23 of 2017 by James Muthike, John Maraka and Peter Kariuki Kimani claiming adverse possession of 7.525 acres of parcel 834. The court noted that parcel 834 was never the subject of this suit and that if the plaintiffs in that case have any interest in the suit properties, they are entitled to place their own inhibitions.

p. 2

Legal principles established

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  • Where a claimant's claim to suit properties has been dismissed and no appeal filed, cautions or inhibitions placed by that claimant should not continue to encumber the properties
  • An application need not cite the specific law under which it is brought, the omission not being fatal under Order 51 Rule 10 of the Civil Procedure Rules

Court orders

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  1. 1.All inhibitions placed on land parcels no. GICHUGU/SETTLEMENT/SCHEME/4806, 4807, 4808, 4809, 4810, 4811, 4812, 4813, and 4814 by the Respondent be removed forthwith
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Registration ActSection 70
  • Civil Procedure RulesOrder 51 Rule 10
Jurisdiction invoked
Civil Procedure Rules, Order 51 Rule 10; Land Registration Act, Section 70

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wairimu Kimani v Joseph Mburu Kimani [2017] KEELC 2057 (KLR)", Case Analysis (2017). Notice of Motion dated 9th January 2016 (in the suit filed 17th October 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2057/eng@2017-07-28

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