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ELCDismissed· [2020] KEELC 3718 (KLR)

Leonard Njeru Mukera & another v Silas Njeru Njiru & 3 others [2020] KEELC 3718 (KLR)

Environment and Land Court
30 January 2020
YAY.M. Angima
1,015 words in judgment
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The bottom line

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A Kenyan land buyer who thought a court restriction on their property would lapse when a suit went dormant was wrong—the Environment and Land Court kept the restriction in place.

What this practically means

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Executive summary

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By an originating motion expressed to be brought under Sections 70(b), (d), 73(1) and 78(2) of the Land Registration Act 2012, Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, the Applicants sought removal of an inhibition, caution and restriction registered against L.R. No. Mbeti/Gachoka/1555, registered as a court order of no dealings pending determination of Kerugoya ELC No. 15 of 2014. They contended the encumbrance was improperly registered since no such order existed, and that in any event the underlying suit had abated under Order 24 of the Rules. The Respondents, who were the plaintiffs in the Kerugoya suit, explained that an interim injunction had been issued and registered; that the defendant died in 2014; and that after family members ignored citations, they obtained a grant in Siakago PM's Court Succession Cause No. 78 of 2018 and intended to seek revival of the suit and to join the deceased's legal representatives. The court framed a single question: whether the Applicants had made out a case for removal of the encumbrance. Although the suit had abated, the court found the dispute unresolved and the Respondents' steps toward revival reasonable. Emphasising its duty to preserve property that is the subject of a dispute, the court dismissed the originating motion, directed the Respondents to apply for revival of the abated suit within 30 days, and ordered each party to bear its own costs. Delivered at Embu on 30th January 2020 by Y.M. Angima, J.

Key legal issues

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01

Whether the encumbrance registered against the suit property should be removed given the abatement of the underlying suit

Holding

The application for removal of the encumbrance was dismissed; the encumbrance remains in place to preserve the disputed property pending revival of the abated suit

Reasoning

Although the suit pursuant to which the interim injunction was registered had abated by operation of law under Order 24 of the Rules, the court found that the underlying dispute was never resolved. The Respondents explained the challenges they faced and took reasonable steps toward reviving the suit, including obtaining a grant to the deceased Defendant's estate. The court considered it prudent to preserve the property rather than allow its distribution while the dispute persists, and gave the Respondents 30 days to apply for revival.

p. 2

Legal principles established

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  • A court has a duty to preserve property which is the subject of a dispute pending its resolution, notwithstanding abatement of the suit giving rise to the encumbrance

Court orders

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  1. 1.The Applicants' originating motion dated 11th July 2019 be and is hereby dismissed
  2. 2.The Respondents shall take steps to apply for revival of their abated suit within 30 days from the date hereof
  3. 3.Each party shall bear its own costs

Authorities

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Legislation

  • Land Registration ActSections 70(b), (d), 73(1), 78(2)
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 51 Rule 1; Order 24
  • Law of Succession ActCap. 160 (citations and grants)
Jurisdiction invoked
Sections 70(b) & (d), 73(1) & 78(2) of the Land Registration Act 2012; Sections 1A, 1B & 3A of the Civil Procedure Act (Cap. 21); Order 51 Rule 1 of the Civil Procedure Rules

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, "Leonard Njeru Mukera & another v Silas Njeru Njiru & 3 others [2020] KEELC 3718 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3718/eng@2020-01-30

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