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ELCAllowedNotice of Motion dated 13th June 2017· [2019] KEELC 3753 (KLR)

Wackson Njoroge Mbiriri & another v Chief Land Registrar, Nairobi [2019] KEELC 3753 (KLR)

Environment and Land Court
4 April 2019
LKL. KOMINGOI
661 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 ordered the Chief Land Registrar to remove two decades-old cautions on Nairobi land because nobody justified keeping them.

What this practically means

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Executive summary

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The applicants, administrators of the estate of the late Njoroge Mbiriri (registered proprietor of LR No. Dagoretti/Waithaka/T.188) pursuant to letters of administration in Succession Cause No. 269 of 2012, moved the court by notice of motion dated 13th June 2017 under Order 51 Rule 1 of the Civil Procedure Rules, 2010 and Section 73(1) of the Land Registration Act. They sought orders compelling the respondent, the Chief Land Registrar, to remove two cautions placed on the parcel by the late Margaret Wanja Njoroge on 15th October 1981 and by the late Mary Njoki Njoroge on 17th October 1981. The applicants contended the cautions were placed wrongfully and without notice to the deceased proprietor, and that the respondent had failed to act on their removal applications dated 9th October 2015 and 15th June 2016. The respondent filed grounds of opposition dated 28th July 2017 but filed no replying affidavit justifying the cautions. The court directed that the motion be canvassed by written submissions; only the applicants' submissions were filed. Holding the application effectively unopposed and finding no justification for the subsistence of the cautions, the judge allowed the application, ordering the respondent to remove both cautions, with costs in the cause.

Key legal issues

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01

Whether the cautions placed on Dagoretti/Waithaka/T.188 should be removed

Holding

The application is allowed; the respondent is compelled to remove both cautions as no justification for their subsistence was offered.

Reasoning

The court noted that no replying affidavit was filed by the respondent justifying the registration of the cautions, rendering the application effectively unopposed. The applicants, administrators of the deceased registered proprietor's estate, had earlier applied to the respondent for removal without success. Section 73(1) of the Land Registration Act empowers the court to order removal of a caution, and in the absence of any justification the court allowed the application.

p. 2

Legal principles established

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  • A caution may be withdrawn by the cautioner or removed by an order of the court or, subject to subsection (2), by order of the Registrar; absent justification for its subsistence, the court will order removal.

Court orders

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  1. 1.An order compelling the respondent to remove the caution placed on the parcel of land known as Dagoretti/Waithaka/T.188 by the late Margaret Wanja Njoroge on 15th October 1981
  2. 2.An order compelling the respondent to remove the caution placed on the parcel of land known as Dagoretti/Waithaka/T.188 by the late Mary Njoki Njoroge on 17th October 1981
  3. 3.Costs be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Land Registration Act, 2012Section 73(1)

Cases cited (1)

  • Dinara Properties Limited vs Malcedian Properties Limited & Another
    [2018] eKLR
Jurisdiction invoked
Section 73(1) of the Land Registration Act, 2012 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Wackson Njoroge Mbiriri & another v Chief Land Registrar, Nairobi [2019] KEELC 3753 (KLR)", Case Analysis (2019). Notice of Motion dated 13th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3753/eng@2019-04-04

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