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ELCAllowedNotice of Motion dated 16th December 2014 (ELC, Kerugoya)· [2017] KEELC 3170 (KLR)

In re Lucy Mumbi Njogu & another [2017] KEELC 3170 (KLR)

Environment and Land Court
31 March 2017
BOB.N. Olao
820 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Lucy Mumbi Njogu and Kithinji Karaba moved the Environment and Land Court at Kerugoya by Notice of Motion dated 16th December 2014 seeking removal of all prohibitory orders placed on L.R No. MUTIRA/KAGUYU/1290 vide Nairobi High Court Civil Case No. 1998 of 1978, with costs in the cause. The application had no respondent. The court tried unsuccessfully to call for the Nairobi case file, writing five letters to the Deputy Registrar, Nairobi High Court, none of which received a response, corroborating the applicants' claim that the record was lost. The court noted that the prohibitory order had been lodged by the 2nd applicant himself in 1978, which explained the absence of a respondent; the registered owner, James Karimi Miano, was not a party. The 2nd applicant swore that he no longer had any interest in the land and had no objection to the order being lifted. The court also took account of its own ruling of 3rd July 2013 in Kerugoya ELC Judicial Review Case No. 7 of 2012 directing that all cautions against the parcel be removed. Although the absence of a respondent was irregular, the court invoked its inherent jurisdiction and Article 159(1)(d) of the Constitution to save the application, and relying on Section 70(d) of the Land Registration Act, allowed the application and ordered that the prohibition order placed on the suit land vide Nairobi High Court Civil Suit No. 1998 of 1978 be removed forthwith, with costs in the cause as sought.

Key legal issues

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01

Power to cancel a prohibitory/inhibitory order

Holding

Under Section 70(d) of the Land Registration Act the court is empowered to cancel any order of inhibition, and where the party who lodged the prohibition no longer objects, the order should be lifted.

Reasoning

The 2nd applicant admitted he caused the prohibitory order to be placed in the Nairobi case in 1978 and swore he had no objection to it being lifted, having no remaining interest in the land. The registered owner, James Karimi Miano, was not a party. The court also took into account its own earlier order of 3rd July 2013 directing removal of all cautions on the parcel.

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02

Application filed without a respondent

Holding

Although the absence of a respondent in an application filed by an advocate was strange, the court chose to save the application under its inherent jurisdiction rather than strike it out.

Reasoning

The court observed that the party who should have been the respondent was in fact the 2nd applicant, who by his own affidavit lodged the prohibition order. This explained the absence of a respondent. The court invoked Article 159(1)(d) of the Constitution and its inherent jurisdiction to sustain the application and grant substantive relief.

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Legal principles established

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  • The court may invoke its inherent jurisdiction and Article 159(1)(d) of the Constitution to save a defective application rather than strike it out.

Court orders

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  1. 1.The prohibition order placed on L.R No. MUTIRA/KAGUYU/1290 vide Nairobi High Court Civil Suit No. 1998 of 1978 be removed forthwith

Authorities

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Legislation

  • Land Registration ActSection 70(d)
  • Constitution of KenyaArticle 159(1)(d)

Cases cited (1)

  • KERUGOYA ELC JUDICIAL REVIEW CASE No. 7 of 2012
Jurisdiction invoked
Inherent jurisdiction and Article 159(1)(d) of the Constitution; Section 70(d) of the Land Registration Act

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, "In re Lucy Mumbi Njogu & another [2017] KEELC 3170 (KLR)", Case Analysis (2017). Notice of Motion dated 16th December 2014 (ELC, Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3170/eng@2017-03-31

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