Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in judgment (Notice of Motion dated 24.1.2022)· [2022] KEELC 1964 (KLR)

Mark Kithinji Mbatiah v Najahait Faiza Hightower [2022] KEELC 1964 (KLR)

Environment and Land Court
26 January 2022
793 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court froze land dealings and let an estate withdraw its appeal, ruling everyone deserves a hearing before losing property.

What this practically means

#

Executive summary

#
This interlocutory ruling of the Environment and Land Court at Meru (C.K. Nzili, ELC Judge) determined prayers 3 and 5 of a notice of motion dated 24.1.2022 filed by the applicant, the legal representative of the estate of Wilber Earl Hightower JR, the deceased registered owner of the suit land. The property had been declared to belong to the respondent through a judgment dated 17.10.2018 in a suit heard ex parte, and the respondent was reportedly on the verge of executing the decree. The respondent opposed the application through a preliminary objection dated 26.1.2022, arguing it offended Section 7 of the Civil Procedure Act, was vexatious and an abuse of process, and that the court was functus officio having declined a similar application by a ruling of 21.5.2021. The court held that because the suit was determined ex parte, the applicant had a constitutional right to be heard, and it would only be fair to preserve the property, still registered in the deceased's name, until the application was heard; inhibition orders under Section 68(1) of the Land Registration Act were accordingly granted. Relying on Salat v IEBC, Telkom Kenya v Ochwanda and Beijing Industrial Designing & Research Institute, the court also allowed the applicant to withdraw the notice of appeal, holding withdrawal is a matter of right that cannot be barred under Articles 49 and 50 of the Constitution. The applicant was directed to file an undertaking as to costs of Kshs. 1,000,000/= within three days, failing which the orders would lapse.

Key legal issues

#
01

Whether inhibition orders should issue to preserve the suit property pending the hearing of the applicant's application

Holding

Granted. The suit having been heard ex parte, the applicant, as legal representative of the deceased registered owner, had not been heard; fairness required preservation of the property pending the interlocutory application.

Reasoning

The court noted the suit was determined exparte and the applicant was condemned unheard. Relying on its powers under Section 68(1) of the Land Registration Act and authorities on inhibition orders, it found good grounds existed to preserve the property, which remained registered in the deceased's name, until the application dated 24.1.2022 was heard and determined.

p. 2
02

Whether the applicant could withdraw the notice of appeal

Holding

Allowed. Withdrawal of a claim or notice of appeal before an appeal is lodged is a right of the party that a court cannot bar, subject to costs.

Reasoning

Relying on Beijing Industrial Designing & Research Institute v Lagoon Development Ltd, Telkom Kenya Ltd v John Ochwanda and Nicholas Kiptoo Arap Korir Salat v IEBC, the court held withdrawal is a matter of right, no interpartes hearing was necessary, and the only power the court retains is to make an order as to costs, effected here through the undertaking of Kshs. 1,000,000/=

p. 2
03

Whether the application was barred by res judicata and whether the court was functus officio following the ruling of 20.5.2021/21.5.2021

Holding

Not upheld; the court proceeded to grant the prayers notwithstanding the objection.

Reasoning

The respondent raised a preliminary objection that the application offended Section 7 of the Civil Procedure Act and that the court was functus officio having declined a similar application by a ruling dated 21.5.2021. The court did not expressly resolve the objection in reasons but granted prayers 3 and 5 and the withdrawal, effectively declining to uphold the preliminary objection.

p. 1

Legal principles established

#
  • An inhibition order bars a registered owner of disputed property from registering any transaction over it until further orders or until the suit is heard, and requires good grounds from the applicant
  • A party has an unqualified right to withdraw a notice of appeal before the appeal is lodged, subject only to an order as to costs

Court orders

#
  1. 1.Inhibition orders granted preserving the suit property, registered in the name of the deceased, pending hearing and determination of the application dated 24.1.2022
  2. 2.Leave granted for the applicant to withdraw the notice of appeal
  3. 3.Applicant to file an undertaking as to costs of Kshs. 1,000,000/= within 3 days from the date of the ruling, failing which the orders shall lapse

Authorities

#

Legislation

  • Civil Procedure ActSection 7
  • Land Registration ActSection 68(1)
  • Constitution of KenyaArticles 49 and 50

Cases cited (6)

  • Andrew Gachini Gitonga –vs- Stephen Ndirangu Murithi
    [2021] eKLR
  • Dorcas Muthoni & 2 Others –vs- Michael Ireri Ngari
    [2016] eKLR
  • David Gitau Kuria –vs- Muthoni Mbugua Ndumoo & 3 Others
    [2021] eKLR
  • Beijing Industrial Designing & Research Institute –vs- Lagoon Development Ltd
    [2015] eKLR
  • Telkom Kenya Ltd –vs- John Ochwanda
    [2014] eKLR
  • Nicholas Kiptoo Arap Korir Salat –vs- IEBC & 7 Others
    [2014] eKLR
Jurisdiction invoked
Section 68(1) of the Land Registration Act (inhibition orders) and the court's inherent powers on interlocutory applications

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mark Kithinji Mbatiah v Najahait Faiza Hightower [2022] KEELC 1964 (KLR)", Case Analysis (2022). Not stated in judgment (Notice of Motion dated 24.1.2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1964/eng@2022-01-26

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