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Original judgment

Muriongo & another

Muriongo & another (Suing as Personal Representatives of the Estate of Zakaria Kweyu) v Omondi (Environment & Land Case 224 of 2014) [2023] KEELC 21594 (KLR) (15 November 2023) (Ruling) Neutral citation: [2023] KEELC 21594 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA ENVIRONMENT & LAND CASE 224 OF 2014 DO OHUNGO, J NOVEMBER 15, 2023 BETWEEN CHARLES MURIONGO ...................................................................... 1ST PLAINTIFF ANTHONY MURIONGO .................................................................. 2ND PLAINTIFF SUING AS PERSONAL REPRESENTATIVES OF THE ESTATE OF ZAKARIA KWEYU AND FRANCIS OMONDI .............................................................................. DEFENDANT RULING 1. The plaintis commenced proceedings in this matter through Originating Summons dated 14th February 2008, which they led in the High Court as HCCC Number 34 of 2008 (OS). The matter was later transferred to this court. 2. The plaintis averred in the OS that they had acquired title to the parcel of land known as S. Wanga/ Lureko/695 (suit property) by adverse possession. Upon hearing the matter, this court (N A Matheka, J) delivered judgment on 7th May 2019. The court found that the plaintis had failed to establish their case and consequently dismissed it with costs. 3. Subsequently, the defendant led Notice of Motion dated 15th February 2023, which is the subject of this ruling. The following orders are sought in the application: a. That the Honourable Court be pleased to remove the caution lodged on 22.09.2009 as entry no. 6 and court order lodged on 09.10.2009 as entry no. 7 on the register. b. That costs of this application be borne by the Plaintis/Respondents. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21594/eng@2023-11-15 1

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c. Such other orders as the court deems t and just to grant. 4. The application is supported by an adavit sworn by the defendant. He deposed that he carried out a search on 6th August 2019 and was surprised to nd that the plaintis had placed a caution as entry number 6 and registered a court order as entry number 7 in the register. He annexed a copy of a certicate of search and added that he had subdivided the suit property to his beneciaries but was yet to process titles owing to the said encumbrances. That the plaintis had not led any appeal against the judgment. 5. The plaintis opposed the application through a replying adavit sworn by the rst plainti. He deposed that they had led Court of Appeal Civil Application Number 1 of 2020 seeking leave to le a Notice of Appeal against the judgment out of time and that although ruling on the application was reserved for 29th January 2021, it was not delivered since the Court of Appeal found that the defendant was not served with the application. He added that the Court of Appeal is yet to x a new hearing date for the application and that the prayer for removal of caution is premature as the defendant is yet to exhaust the statutory procedure for removal of cautions. 6. The defendant/applicant led written submissions on 15th September2023 while the plaintis/ respondents relied entirely on the replying adavit. 7. I have considered the application, the adavits, and the submissions. The sole issue for determination is whether the orders sought should issue. 8. From the material on record, it is apparent that that a caution was registered against the suit property as entry number 6 on 22nd September 2009 by Anthony Mulama Muriongo who was claiming a beneciary interest. The said Anthony Mulama Muriongo must be the second plainti herein. The caution was not registered pursuant to any order of this court. Consequently, its removal must be subject to the procedure under Section 73 of the Land Registration Act as opposed to an application in this suit. 9. The material on record further reveals that an order issued in this suit while it was still HCCC Number 34 of 2008 (OS) was registered against the suit property as entry number 7 on 9th October 2009. The entry states that the order restrained dealings “until the suit is heard.” The applicant did not oer any details as to the date the order was made. Nevertheless, a perusal of the record reveals that pursuant to a ruling delivered in this matter on 25th June 2009, an injunction was issued restraining the defendant from interfering with the plaintis’ use and occupation of the suit property pending hearing and determination of the OS. I believe that is the order that was registered on 9th October 2009 as entry number 7. 10. The OS was determined on 7th May 2019, upon delivery of the judgment. Whereas the plaintis have stated that that they led an application in the Court of Appeal seeking leave to le a Notice of Appeal against the judgment out of time, there is nothing to show whether the application has been determined. As long as the application remains undetermined, and long as there is no valid Notice of Appeal led against the judgment, there is no valid appeal. The plaintis may wish to expedite their application in the Court of Appeal and maybe get some conservatory orders from the said court once they have a valid appeal. 11. In view of the foregoing, I nd merit in the portion of the application that refers to the order that was registered against the suit property as entry number 7 on 9th October 2009. 12. In the result, I make the following orders: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21594/eng@2023-11-15 2

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a. Entry number 7 dated 9th October 2009 in the register of the parcel of land known as S. Wanga/ Lureko/695 pursuant to which a court order was registered be removed from the register. b. The defendant shall have costs of Notice of Motion dated 15th February 2023. DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 15TH DAY OF NOVEMBER 2023. D. O. OHUNGO JUDGE Delivered in open court in the presence of: Mr Nyikuli holding brief for Ms Ikhumba for the Plaintis Mr K Mukavale holding brief for Mr Okeyo for the Defendant Court Assistant: E. Juma https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21594/eng@2023-11-15 3

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