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ELCPartially AllowedELC. Case No. 422 of 2016· [2019] KEELC 4728 (KLR)

John Kirui Muthiora v Stephen Waweru Muthiora [2019] KEELC 4728 (KLR)

Environment and Land Court
8 February 2019
KBK. Bor
1,233 words in judgment
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The bottom line

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A Kenyan court refused Kshs. 25 Million in damages for a wrongful land caution but still made the cautioner pay the landowner's legal costs.

What this practically means

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Executive summary

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The Plaintiff sued his brother, the Defendant, seeking removal of cautions the Defendant had lodged on 13/5/2008 against parcels Dagoretti/Riruta/3851, 3855, 3856, 3857 and 3858, and general damages for lodging and maintaining them. The Defendant opposed, arguing the cautions had been withdrawn, that the suit was res judicata given the earlier HCCC No. 972 of 2005 (in which the Plaintiff had obtained judgment over the subdivision of Dagoretti/Riruta/217), and that the court was functus officio. The court summoned the Chief Land Registrar, who confirmed the cautions were withdrawn on 19/4/2016, after an earlier withdrawal application lodged 14/10/2015 was rejected. The court held the earlier suit concerned subdivision, not cautions, so res judicata did not apply; the present suit was overtaken by events since the cautions had been removed eight days before filing and the Defendant never notified the Plaintiff. General damages of Kshs. 25 Million were declined because the Plaintiff had remained in occupation of the property. However, the Plaintiff was awarded the costs of the suit, the court finding the Defendant's failure to notify the Plaintiff of the withdrawal necessitated the litigation. Judgment delivered by K. Bor J on 8 February 2019 at Nairobi.

Key legal issues

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01

Res judicata

Holding

The plea failed because the earlier suit (HCCC No. 972 of 2005) did not deal with the cautions, which were the subject matter of the present suit

Reasoning

The court compared the two suits. The earlier case concerned the subdivision of L.R. No. Dagoretti/Riruta/217 and the Defendant's conduct of that subdivision. It did not determine any issue concerning the cautions lodged by the Defendant against the Plaintiff's parcels. Consequently the matters in issue were different and res judicata did not apply.

p. 2
02

General damages for wrongful caution

Holding

Damages declined because the Plaintiff remained in occupation of the suit property throughout, so no compensable deprivation was shown

Reasoning

Although the Defendant maintained cautions long after judgment in the earlier suit, the Plaintiff did not demonstrate loss. He continued in occupation of the land, and the cautions were in fact removed on 19/4/2016, eight days before the suit was filed, without the Defendant notifying him. The court therefore refused general damages but awarded costs.

p. 2

Legal principles established

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  • A party who lodges a caution over another's land and fails to withdraw it after judgment, or to notify the landowner of its withdrawal, may be liable for the costs of a suit necessitated by that failure

Court orders

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  1. 1.The suit was declared overtaken by events as the cautions had been removed before filing
  2. 2.General damages of Kshs. 25 Million declined
  3. 3.Plaintiff awarded the costs of the suit against the Defendant
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land, including cautions under Section 75 of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "John Kirui Muthiora v Stephen Waweru Muthiora [2019] KEELC 4728 (KLR)", Case Analysis (2019). ELC. Case No. 422 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4728/eng@2019-02-08

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