Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion Application dated 20th June 2017 (arising from suit over PLOT SUB-DIVISION NO. 2812/I/MN)· [2019] KEELC 3117 (KLR)

Julius Musili Kyunga v Kenya Commercial Bank & another Interested Party James Muriuki Karaya [2019] KEELC 3117 (KLR)

Environment and Land Court
30 May 2019
CYC.K. YANO
1,311 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Mombasa refused to remove a restriction on a Mombasa plot because court orders protecting it were still in force.

What this practically means

#

Executive summary

#
The Plaintiff, registered proprietor of Plot Sub-Division No. 2812/I/MN Shanzu, moved the court by Notice of Motion dated 20th June 2017 under Section 80 of the Land Registration Act and Sections 3A and 3B of the Civil Procedure Act, seeking rectification of the register by removal of entry No. 8, a prohibition registered by the Registrar on 22nd June 2016 purportedly pursuant to conservatory orders issued by Omollo, J on 30th October 2015 restraining the 1st Defendant and the Interested Party from registering a transfer of the property. The Plaintiff argued the order was in personam, not in rem, and that its registration created an unwarranted encumbrance affecting innocent third parties. The 1st and 2nd Defendants supported the application. The Interested Party, James Muriuki Karaya, who purchased the property at a public auction on 11th November 2008, opposed, contending the Plaintiff's equity of redemption was extinguished at the fall of the hammer, as the Court of Appeal found in Civil Appeal No. 3 of 2013, and that the Plaintiff's remedy lay in damages. C.K. Yano, J framed a single issue: whether the court could grant the orders sought. Holding that the conservatory orders of 30th October 2015 remain in force for as long as the suit or any part of it, including the Interested Party's counter-claim, is pending, and that the application was not a review and the court could not sit on appeal over Omollo, J's orders, the judge dismissed the application with costs to the Interested Party on 30th May 2019.

Key legal issues

#
01

Whether the court could grant rectification of the register and removal of entry No. 8 under Section 80 of the Land Registration Act

Holding

The application was dismissed; the court held it could not grant the orders because the conservatory orders of 30th October 2015 remained in force while the suit and the Interested Party's counter-claim were pending, and the application was not seeking review of those orders.

Reasoning

The court found the dispute over the suit property remained live between the Interested Party on one side and the Plaintiff and Defendants on the other. The Court of Appeal in Civil Appeal No. 3 of 2013 had found the Plaintiff lost his right of redemption at the auction sale. The order of Omollo, J of 30th October 2015 restraining transfer of the property was still operative, and the Plaintiff's purported withdrawal of the suit against the Interested Party did not dispose of the pending counter-claim. Rectification could not circumvent the standing order.

p. 2

Legal principles established

#
  • Interim conservatory orders remain in force for as long as the suit or any part of it is pending, unless set aside by consent of all parties, review or appeal
  • A court cannot, through a rectification application, sit on appeal over or vary orders made by another judge of coordinate jurisdiction; the proper remedy is review or appeal

Court orders

#
  1. 1.The Application dated 20th June 2017 is dismissed
  2. 2.Costs of the application awarded to the Interested Party

Authorities

#

Legislation

  • Land Registration ActSection 80
  • Civil Procedure ActSections 3A and 3B
  • Transfer of Property Act (repealed)Section 69B
  • Land ActSection 99

Cases cited (7)

  • Mary Ruguru Njoroge v John Samuel Gachuma Mbugua & 4 Others
    (2014) eKLR
  • Republic v Attorney General & 2 Others Ex Parte APM Termanal B.V.
    (2015) eKLR
  • Bomet Beer Distributors Ltd & Another v Kenya Commercial Bank Ltd and 4 Others
    (2005) eKLR
  • Nationwide Finance Company Limited v Meck Industries Ltd
    (2005) eKLR
  • Mary Njeri Ngowi v Housing Finance Company of Kenya Limited & 2 Others
    HCCC No. 1864 of 2000
  • Kitur & Another v Standard Chartered Bank & Another (No.2)
    (2002) 1 KLR 640
  • Johnstone Amulioto Ayub v Peter Mwangi Njuguna
    (2013) eKLR
Jurisdiction invoked
Section 80 of the Land Registration Act, No. 3 of 2012 and Sections 3A and 3B of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Julius Musili Kyunga v Kenya Commercial Bank & another Interested Party James Muriuki Karaya [2019] KEELC 3117 (KLR)", Case Analysis (2019). Notice of Motion Application dated 20th June 2017 (arising from suit over PLOT SUB-DIVISION NO. 2812/I/MN). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3117/eng@2019-05-30

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