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ELCAllowedHCCC 1995 of 1980· [2021] KEELC 922 (KLR)

Jane Njoki Gituanja v Kimani Gituanja [2021] KEELC 922 (KLR)

Environment and Land Court
16 November 2021
SOS. Okong'o
947 words in judgment
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The bottom line

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The Environment and Land Court ordered removal of long-standing cautions and restrictions on land so a 1981 judgment, already upheld on appeal, could finally be executed.

What this practically means

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Executive summary

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This ruling by S. Okong'o, J, of the Environment and Land Court, Nairobi, arose from an application dated 23rd August, 2019 by the plaintiff seeking removal of cautions and restrictions registered against the title of Kabete/Nyathuna/53 so that a mutation form subdividing the land and a transfer of Plot No. 1115 could be registered in execution of a judgment of 12th June, 1981. That judgment declared the defendant registered trustee, ordered sub-division into two equal portions, transfer of one half to the plaintiff, and costs to the plaintiff. The defendant's appeal (Nairobi Court of Appeal Civil Appeal No. 25 of 1982) was dismissed on 10th May, 1983. The land was subsequently subdivided into Plots 1115 and 1116; on 30th July, 1984 the court ordered registration of Plot 1115 in the plaintiff's name and Plot 1116 in the defendant's name. The Deputy Registrar executed the transfer in 2019, but the Kiambu District Land Registrar declined registration pending removal of the cautions lodged by the plaintiff (1982) and one Michael Mungai Kimani (1998), and a restriction of 8th July, 1981. The defendant's family opposed through a preliminary objection, citing an order of 27th July, 2018 presuming the defendant deceased, non-service on his legal representatives, and a pending suit, HC Misc. Civil Case No. 590 of 2010. The court found the suit fully determined and upheld on appeal, no dispute pending, and the defendant's death of no consequence. The application was allowed; the three register entries were lifted, with costs in the cause.

Key legal issues

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01

Removal of cautions and restrictions to facilitate execution of an upheld judgment

Holding

The court allowed the lifting of the entries of 8th July, 1981, 16th September, 1982 and 28th August, 1998 so the transfer of Plot No. 1115 to the plaintiff could be registered.

Reasoning

The judgment of 12th June, 1981 had been partially executed: the land was subdivided into Plots 1115 and 1116 and a transfer executed by the Deputy Registrar. The orders sought merely facilitated registration of what the court and the Court of Appeal had already decreed. No pending suit between the parties remained, and the defendant's presumed death had no consequence on the orders sought.

p. 2
02

Effect of the defendant's presumed death and non-service on his legal representatives

Holding

The respondent's preliminary objections based on presumed death and lack of service on legal representatives did not defeat the application.

Reasoning

The respondent contended the High Court had on 27th July, 2018 presumed the defendant deceased and that his legal representatives were never served. The court held the death of the defendant had no consequence on the orders sought, since the decree predated the death and execution was a continuation of an already determined suit.

p. 2

Legal principles established

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  • Once a suit has been determined and the decision upheld on appeal, entries protecting unproven interests (restrictions and cautions) should not stand in the way of executing the decree.

Court orders

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  1. 1.The entries made in the proprietorship section of the register of Title No. Kabete/Nyathuna/53 on 8th July, 1981, 16th September, 1982 and 28th August, 1998 as entry numbers 2, 3 and 4 respectively are lifted and shall be removed by the District/County Land Registrar Kiambu forthwith
  2. 2.The costs of the application shall be in the cause
Jurisdiction invoked
Original jurisdiction over the suit; application to remove cautions and restrictions to facilitate execution of the decree in HCCC 1995 of 1980, whose appeal (Nairobi Court of Appeal Civil Appeal No. 25 of 1982) was dismissed on 10th May, 1983

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, "Jane Njoki Gituanja v Kimani Gituanja [2021] KEELC 922 (KLR)", Case Analysis (2021). HCCC 1995 of 1980. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/922/eng@2021-11-16

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