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ELCOtherJudicial Review 5 of 2022· [2023] KEELC 18687 (KLR)

Gathirimu & another v County Land Registrar, Kiambu; Ngunjiri (Interested Party)

Environment and Land Court
10 July 2023
BEB M Eboso
437 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The applicants moved the court by notice of motion dated 14/7/2022 seeking vacation of a caution registered against land parcel Dagoretti/Uthiru/553. Pre-trial proceedings were handled by the Deputy Registrar, and the motion was canvassed by written submissions; the respondent's counsel indicated reliance on grounds of opposition. When the matter came up before Eboso J on 15/5/2023, a judgment date was reserved. However, while preparing the judgment, the court perused the pleadings and affidavits of service and identified two procedural defects. First, service on the interested party, Rose Wairimu Ngunjiri, was allegedly effected through an email address whose provenance the applicants could not explain, raising doubt that she was aware of the suit. Secondly, although designated a mere interested party, she is in fact the cautioner whose encumbrance the applicants seek to remove; she ought to have been joined as a substantive respondent so that she could be invited to show cause why the caution should not be vacated. Rather than determine the motion, the court vacated the order reserving a judgment date, directed that the notice of motion be amended forthwith to designate Ngunjiri as a substantive respondent, and ordered service upon her through a prominent notice in the Daily Nation or the Standard newspaper. The judgment is a short procedural order; no costs order was made and no merits determination was reached.

Key legal issues

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01

Joinder of the cautioner as a substantive respondent

Holding

The cautioner ought to be a substantive respondent, not an interested party, so she can be heard on why the caution should not be vacated

Reasoning

The court perused the pleadings and affidavits of service from pre-trial proceedings before the Deputy Registrar. It found service on the interested party was by an email of unclear provenance, so the cautioner may be unaware of the suit. Since she registered the caution, she is the proper party to answer the application to vacate it, and the motion had to be amended and served afresh.

p. 2
02

Adequacy of service on the interested party

Holding

Service by email was doubtful because the source of the email address was unexplained, warranting service by newspaper notice

Reasoning

The court noted the interested party was allegedly served through an email address, but it was not clear where the applicants obtained that address. Given the doubt over service and the cautioner's potential ignorance of the suit, the court directed service through a prominent newspaper notice before the motion is determined.

p. 1

Legal principles established

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  • A cautioner against whose caution relief is sought must be joined as a substantive respondent, not merely an interested party, and must be shown to have been served before the court determines the application

Court orders

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  1. 1.The notice of motion dated 14/7/2022 shall be amended forthwith to designate Rose Wairimu Ngunjiri as a substantive respondent.
  2. 2.The motion shall be served on Rose Wairimu Ngunjiri through a prominent notice in either the Daily Nation Newspaper or the Standard Newspaper.
  3. 3.The order reserving a date for judgment in this suit is hereby vacated.
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (judicial review over land matters); no specific provision quoted

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, "Gathirimu & another v County Land Registrar, Kiambu; Ngunjiri (Interested Party)", Case Analysis (2023). Judicial Review 5 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18687/eng@2023-07-10

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