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ELCDismissedApplication dated 7.7.2021 (suit dismissed 22.5.2019)· [2021] KEELC 676 (KLR)

Catherine Nkirote v Stephen Marete & another [2021] KEELC 676 (KLR)

Environment and Land Court
1 December 2021
CNC.K. NZILI
472 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to lift property restrictions because the owner couldn't prove where they came from or serve the right party.

What this practically means

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Executive summary

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By an application dated 7.7.2021, brought under Sections 70 and 73 of the Land Registration Act and Section 3A of the Civil Procedure Act, Joseph Murithi M'Marete, the 2nd defendant, sought orders for the removal of an inhibition, caution and other restrictions registered against Parcel L.R. Nkuene/Kathera/726. He argued that the suit had been dismissed on 22.5.2019 with costs to the defendants, no appeal was preferred, and the plaintiff who caused the restrictions had died on 9.5.2013, rendering the restrictions purposeless. The court noted the deceased plaintiff had been substituted by Joseph Gikunda Kirigia, who participated in the suit up to judgment. Although the court ordered service of the application on the respondent, no affidavit of service was filed. On the merits, the search revealed two restrictions, dated 27.3.2006 and 14.9.2010; the first was placed by CID officers apparently conducting investigations of unknown status. There was no evidence the restrictions were registered pursuant to a court order in this suit, and the applicant was silent on related proceedings, including Meru High Court Civil Appeal No. 19 of 2016. Finding no merit and no proof of service on the rightful respondent, the court dismissed the application with no order as to costs on 1.12.2021.

Key legal issues

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01

Whether restrictions on the suit property should be lifted after dismissal of the suit

Holding

Application dismissed; applicant failed to show the restrictions were connected to this suit or had been overtaken by events

Reasoning

The court noted two restrictions dated 27.3.2006 and 14.9.2010. The first was placed by CID officers apparently conducting investigations whose status was unknown. There was no evidence the restrictions flowed from a court order in this suit, and the applicant was silent on the outcome of related proceedings including Meru High Court Civil Appeal No. 19 of 2016.

p. 1
02

Whether service on the respondent was properly effected

Holding

No affidavit of service was filed proving service on Joseph Gikunda Kirigia

Reasoning

The court had directed service of the application on the respondent, but no affidavit of service was filed to show the substituted plaintiff was served. Combined with the absence of clarification on the restrictions and prior proceedings, the court found no merit in the application.

p. 1

Legal principles established

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  • An applicant seeking removal of restrictions must demonstrate the basis on which the restrictions were registered and serve the rightful respondent

Court orders

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  1. 1.Application dated 7.7.2021 dismissed with no order as to costs

Authorities

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Legislation

  • Land Registration ActSections 70 & 73
  • Civil Procedure ActSection 3A
Jurisdiction invoked
Sections 70 & 73 of the Land Registration Act and Section 3A of the Civil Procedure Act

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, "Catherine Nkirote v Stephen Marete & another [2021] KEELC 676 (KLR)", Case Analysis (2021). Application dated 7.7.2021 (suit dismissed 22.5.2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/676/eng@2021-12-01

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