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ELCAllowedELC Case No. 149 of 2012· [2024] KEELC 3646 (KLR)

Kubai v Karimi (Sued as the administratix of the Estate of Late Justus M’Murithi M’Mbagiri) & 3 others (Environment & Land Case 149 of 2012) [2024] KEELC 3646 (KLR)

Environment and Land Court
18 January 2024
832 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

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A land inhibition expires once the court case it protected ends, and losing parties must get a stay of execution to keep it alive.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (Hon. C. Yano, ELC Judge) determined a Notice of Motion dated 18th September 2023 by the defendants/applicants, brought under Section 70 of the Land Registration Act, 2012, Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking the lifting of all inhibitions, restrictions and cautions lodged against LR No. Ntima/Igoki/1227. The applicants deponed that an inhibition had been registered on 16th July 2020 pending hearing and determination of ELC Case No. 149/2012, and that judgment delivered on 12th July 2023 dismissed the plaintiff's suit with costs to the defendants, rendering the inhibition purposeless. The plaintiff/respondent opposed, deponing that he had preferred an appeal and had already applied to the Court of Appeal under Rule 5(2)(d) for injunction or, alternatively, inhibition pending the intended appeal, and that lifting the inhibition would cause him substantial loss. The court held that the inhibition was tied to the hearing and determination of the suit; that event having occurred, the inhibition was spent. No application for stay of the 12th July 2023 judgment was before the court, and the respondent was at liberty to pursue his preservation application before the Court of Appeal. Emphasizing that successful litigants should enjoy the fruits of judgment, the court allowed the application as prayed on 18th January 2024.

Key legal issues

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01

Whether the inhibition orders lapsed with the determination of the suit

Holding

The inhibition, registered to protect the suit land until hearing and determination of ELC Case No. 149/2012, served its purpose when judgment was delivered on 12th July 2023 dismissing the plaintiff's suit, and therefore became spent.

Reasoning

The court found it undisputed that the inhibition was registered on 16th July 2020 to bar dealings until determination of the suit. That event occurred with the judgment of 12th July 2023, which dismissed the respondent's suit with costs to the applicants. The purpose for which the inhibition was issued having come to pass, the order was spent and no longer served any purpose.

p. 2
02

Whether the respondent's pending appeal justified retaining the inhibition

Holding

No. The respondent had already filed an application in the Court of Appeal seeking similar preservation orders, and no stay of execution was in place before the ELC.

Reasoning

The respondent acknowledged preferring an appeal and had moved the Court of Appeal under Rule 5(2)(d) seeking injunction or inhibition pending appeal. The court held that nothing stopped it from lifting the inhibition since no stay existed, and the respondent was at liberty to pursue his application before the Court of Appeal.

p. 2

Legal principles established

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  • An inhibition registered pending hearing and determination of a suit becomes spent upon final determination of that suit
  • A successful litigant is entitled to enjoy the fruits of judgment absent a stay of execution

Court orders

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  1. 1.The application dated 18th September, 2023 is allowed as prayed
  2. 2.All inhibitions, restrictions and/or cautions lodged against LR No. Ntima/Igoki/1227 are lifted

Authorities

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Legislation

  • Land Registration ActSection 70
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSection 3A
  • Court of Appeal RulesRule 5(2)(d)
  • Land Registration ActSection 68
Jurisdiction invoked
Section 70 of the Land Registration Act, 2012; Order 51 Rule 1 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act

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, "Kubai v Karimi (Sued as the administratix of the Estate of Late Justus M’Murithi M’Mbagiri) & 3 others (Environment & Land Case 149 of 2012) [2024] KEELC 3646 (KLR)", Case Analysis (2024). ELC Case No. 149 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3646/eng@2024-01-18

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