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ELCAllowedNot stated in judgment (notice of application dated 18th November 2019 in the suit)· [2021] KEELC 3923 (KLR)

Veronicah Wanjiru Thairu & 2 others (As administrators of Njeri Mwamba, Deceased) v John Kimani Mwamba [2021] KEELC 3923 (KLR)

Environment and Land Court
22 March 2021
SOS. Okong'o
1,092 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ordered old cautions and expired court orders removed from a land title so a 2017 judgment could finally be executed.

What this practically means

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Executive summary

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By judgment delivered on 31st March 2017, the court cancelled the registrations of Mwamba Kamau and the defendant John Kimani Mwamba as proprietors of Title No. Ngenda/Gathage/665, reverted the land to Njeri Mwamba, and ordered the plaintiffs, as administrators of her estate under High Court Succession Cause No. 1478 of 1999, to be registered in equal shares. That judgment was not stayed or varied and the cancellations were effected. The plaintiffs then applied, by a notice of application dated 18th November 2019, for removal of encumbrances lodged against the title on 27th July 2002 and 18th August 2011, a caution lodged on 25th June 2002, and all other restrictions, because the Land Registrar Gatundu declined to issue a new title while encumbrances subsisted. The application was served; the defendant did not respond, and his advocate stated he had no instructions. Examining the register, the court identified three encumbrances: a caution in favour of the 1st plaintiff, which the Land Registrar could remove without a court order; a succession-cause order of 1st July 2002 registered on 27th July 2002, which was temporary, was not extended beyond 29th July 2002, and whose underlying application was abandoned; and an injunction of 22nd June 2011 from this suit, which lapsed upon final judgment. Both court orders were held spent. Allowing the application, the court directed the Land Registrar Gatundu to cancel and remove entries 9, 10 and 11 from the proprietorship section of the register forthwith, with costs in the cause.

Key legal issues

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01

Whether the court orders and caution registered against the suit property's title impede execution of the 2017 judgment

Holding

All three encumbrances (entries 9, 10 and 11) are spent or no longer necessary and were ordered removed so the judgment can be executed.

Reasoning

The court examined the register and identified three subsisting encumbrances. The caution was lodged by the 1st plaintiff before the suit and could be withdrawn by the plaintiffs themselves. The succession-cause order of 1st July 2002 was temporary, expired on 29th July 2002, and its underlying application was abandoned. The interlocutory injunction of 22nd June 2011 lapsed upon final judgment. None served any continuing purpose.

p. 2
02

Whether an unopposed application should be allowed

Holding

The court allowed the application, noting the defendant did not respond or object.

Reasoning

The application was served on the defendant who filed no response; his advocate stated he had no instructions. In the absence of any objection, and the application having merit on the register extract, the court granted the orders sought.

p. 2

Legal principles established

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  • A caution registered by a party who now wishes it removed does not require a court order for its removal by the Land Registrar.
  • A temporary order registered against a title that has expired and whose underlying application was abandoned is spent and should be removed from the register.

Court orders

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  1. 1.The Land Registrar Gatundu shall cancel and remove forthwith from the register of Title No. Ngenda/Gathage/665 entries numbers 9, 10 and 11 in the proprietorship section of the said register
  2. 2.The cost of the application shall be in the cause
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land, Title No. Ngenda/Gathage/665, in which the court previously delivered judgment on 31st March 2017

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, "Veronicah Wanjiru Thairu & 2 others (As administrators of Njeri Mwamba, Deceased) v John Kimani Mwamba [2021] KEELC 3923 (KLR)", Case Analysis (2021). Not stated in judgment (notice of application dated 18th November 2019 in the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3923/eng@2021-03-22

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