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ELCDismissed· [2018] KEELC 1734 (KLR)

Joseph Kihugu Mwenja v Joseph Mwangi & 2 others [2018] KEELC 1734 (KLR)

Environment and Land Court
20 September 2018
SOS. Okong'o
2,016 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to lift a 2000 inhibition on land because earlier court orders cancelling the owner's title still stand.

What this practically means

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Executive summary

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This was a ruling on the Interested Party's Notice of Motion dated 24th March, 2014 seeking the lifting and cancellation of an inhibition registered on 21st August, 2000 against the title of Land Reference No. Loc. 2/Mairi/2 pursuant to an order made by Amin J. on 8th August, 2000 at the Plaintiff's instance. The Interested Party, claiming to be the registered owner, argued that the inhibition had prevented him from utilising the property for over thirteen years and that the Plaintiff had neglected to prosecute the suit since his joinder in 2005. The Plaintiff opposed, relying on a long litigation history: his father purchased the property in 1964, sued in adverse possession in 1977, and obtained a judgment on 12th August, 1980 declaring that the 1st Defendant's father held the property in trust and ordering transfer. Despite a transfer executed by the Deputy Registrar in January 1983 and rectification orders of 6th April, 1984 and 30th October, 1984 cancelling the Interested Party's name and declaring his charge to Kenya Commercial Finance fraudulent, the property was never registered in the Plaintiff's father's name because of the 2nd Defendant's non-compliance. Rawal J. had on 5th September, 2000 ordered registration of the Plaintiff's father as owner, an order likewise unvaried. The court found the application wholly without merit: the inhibition protected the Plaintiff's interest confirmed by the 1980 judgment, and the pending matter was execution of the decree, for which the Plaintiff could not be blamed. The Notice of Motion was dismissed with costs to the Plaintiff.

Key legal issues

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Whether the inhibition over the suit property should be lifted

Holding

The application was dismissed; the inhibition remains in place because the judgment of 12th August, 1980 and the rectification orders of 6th April, 1984 and 30th October, 1984 have never been set aside or varied, and the Interested Party's title has been cancelled by court order.

Reasoning

The court traced the litigation history: the 1980 judgment found the 1st Defendant's father held the suit property in trust for the Plaintiff's father and ordered transfer; the Interested Party's subsequent acquisition and charges were declared fraudulent and the register ordered rectified. Those orders stand unvaried, yet the property was never registered in the Plaintiff's father's name due to the 2nd Defendant's failure to comply. The inhibition protects the Plaintiff's interest pending execution of the decree, so there is no justification for lifting it.

p. 2

Legal principles established

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  • An inhibition registered to protect a party's interest in land cannot be lifted where the underlying court orders protecting that interest remain in force and unvaried

Court orders

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  1. 1.Interested Party's Notice of Motion dated 24th March, 2014 dismissed
  2. 2.Costs of the application awarded to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction over land matters (inhibition registered against title of Land Reference No. Loc. 2/Mairi/2); specific provision not stated in the judgment

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 Kihugu Mwenja v Joseph Mwangi & 2 others [2018] KEELC 1734 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1734/eng@2018-09-20

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