Mark Kithinji Mbatiah v Najahait Faiza Hightower [2022] KEELC 1964 (KLR)
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
#Key legal issues
#Whether inhibition orders should issue to preserve the suit property pending the hearing of the applicant's application
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.
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.
Whether the applicant could withdraw the notice of appeal
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.
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/=
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
Not upheld; the court proceeded to grant the prayers notwithstanding the objection.
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.
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.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.Leave granted for the applicant to withdraw the notice of appeal
- 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
- 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.