Case ID:162481

Sherrif Patrickn. Munyui & another v Paul Koinange & another [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 299 of 2018 (O.S)

Parties:

Sherrif Patrickn. Munyui & Peter Warari Munyui v Paul Koinange & Land Registrar Kiambu

Date Delivered:

30 Jul 2020

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Judgment

Judge(s):

Lucy Nyambura Gacheru

Citation:

Sherrif Patrickn. Munyui & another v Paul Koinange & another [2020] eKLR

Court Division:

Environment and Land

County:

Kiambu

Case Outcome:

Originating Summons allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT ANDLAND COURT AT THIKA

ELC CASE NO. 299 OF 2018(O.S)

IN THE MATTER OF; THELAND REGISTRATIONACT NO. 3 OF 2012 LAWS OF KENYA

AND

IN THE MATTER OF; THE LAND REGISTRATION OF TITLE NO.KIAMBA/RUAKA/5991,5992,5993,5994,5995,5996 AND 5997

BETWEEN

SHERRIF PATRICKN. MUNYUI..........................1

ST

APPLICANT

PETER WARARI MUNYUI..................................2

ND

APPLICANT

VERSUS

HON. PAUL KOINANGE.................................1

ST

RESPONDENT

LAND REGISTRAR KIAMBU........................2

ND

RESPONDENT

JUDGMENT

The matter for determination is theOriginating Summons dated

7

th

December 2018

by the Applicants seeking for thefollowing orders against the Respondents;

1. That it be ordered that the Respondents herein be restrained from interfering with the quiet possession of propertyKiambaa/Ruaka 5991, 5992, 5993, 5994, 5995, 5996, 5997.

2. The caution registered on parcels Kiambaa/Ruaka 5991, 5992, 5993, 5994, 5995, 5996, 5997 be revoked and/ or removed.

3. Costs of this suit be provided for.

The Originating Summons is premised on the grounds thatthe Respondents are strangersto the Applicants who are the registered owners of the suit property .That the Applicants will stand prejudicedif the Honourable Courtwill not revoke and/ or removethe cautionas the Respondentsare attempting entryinto their land withoutany legal capacityand interest, but to just frustrate the Applicant from enjoying their rights.

In their supporting Affidavit sworn on

7

th

December 2018,

the Applicants averred that theyare the registered owners of the suit properties with

5991

registered in the name of

Sherriff Patrick Munyui

and

Peter WarariMunyui,5992, Mary WairimuMunyui,5993, SherriffPatrick Munyui, 5994Sherriff Munyui& Peter WarariMunyui, 5995, Peter Warari Munyui, 5996, Sherriff Patrick Munyui, 5997 SherriffPatrickMunyui.

Thaton

25

th

June2015,

the Court in

SuccessionCause No. 1189 of 2005

issued a Certificate of Confirmation of grant,wherein the Applicants were confirmed as the Administrators in charge of the Estate of their late mothertogether with the distribution of her Estate. Further that

Ibrahim Kinyanjui

and

Esther WanjikuKinyanjui,

beingdissatisfiedwith the Order of the Courtfiled the summons forrectification of the grantdated

23

rd

June 2016,

and the same was dismissed in

January 2017

.

That in

September 2017,

the Applicants wanted to make changes to

L.R 5991,

which had inadvertently been registered in the joint nameof

Sherriff Patrick Munyui

and

Peter WarariMunyui

as opposed to

WarariMunyui

only. That is when they discovered that a restriction had been placed on the said property by the 1

st

Respondent. Further that on conducting searches, they discovered that the Respondentshad registered a restriction in respect of all the suit properties on false allegations that the land belonged to their deceased’s brother’s step children who claimed that the Applicant hadirregularly acquired Court Ruling in their favour.

It was contended that a Court order was issued in

January 2017,

dismissing an Application by the alleged beneficiaries to revoke the Confirmation of Grant. That despite requests made by the Applicants Advocates to the 2

nd

Respondent to remove the caution, the 2

nd

Respondent has refusedto comply. Further that the 2

nd

Respondent has neglected to furnishthe Applicants with a copy of the letter by the 1

st

Respondent used to place the restriction. It was contended that there is no justifiable reason as to why the Respondents have refused to remove the said encumbrance and yet the Applicants legally own the land and there has been no appeal or review of the ruling and orders emanating from the said Ruling.

It was further averred that afternumerous visits to the County Commissioner and the Assistant County Commissioner, the applicant were informed that they could not get consent to transfer land as the property had an encumbrance.That when their Advocate wrote to the LandRegistrar, demanding that the restriction be lifted, they were advised to obtain a Court order to lift the restriction though their letter was not responded to. Further that the issue of the rightful beneficiaries was determined bya Court of law and any dissatisfied person should have appealed or reviewed the same. They further averred that they are unable to deal with the suit properties as they are encumbered and it is thus important for the same to be lifted,because they have identified buyers, but the said buyers are skeptical because of the encumbrance. It was their contention that unless the Court allows the instant Application, the Applicant will continue to suffer.

Despite being served with the Originating Summons, the1

st

Respondent

Hon Paul Koinange,

did not enter appearance nor file hisresponse to this application.The 2

nd

Respondent entered Appearance and on

23

rd

July 2019,Ms. Nyawira

from the Attorney General’s office attended Court on behalf of the 2

nd

Respondent and stated that they did not have any objection to the removal of the caution. The Court directed the Applicant to file brief

written submissions,

to support their claim which theyfiled on

26

th

May 2020

and submitted that theCaution which was put by the area Member of Parliamentwas done maliciously without any reasons valid in law.

This Court has now carefully considered the instant application and the annextures thereto.The Court has also considered the written submissions, the cited authorities and the relevant provisions of law andmakes the following rendition:-

There is no doubt that the suit properties hereinare registered in the name of the Applicantsandthat the Applicants acquired the said suit properties upon Confirmation of Grant to the Estateof their Late Mother .There is also no doubt that as per the

official searches

dated

22

nd

September 2017,

and

22

nd

November 2018 on

the various suit properties

, there is in existence

restrictions

on the titles of the suit properties

registered on 5

th

April 2107,

wherein it is indicated that

“Restriction Vide HON. Paul Koinange letter dated 3th April 2017.

The Applicants being the registered ownershave averred that they did not know why the restrictions have been placed on the titles. Further the Court notes that though the Applicants have sought for a reason for the basis upon, which therestrictions was placed and that the Applicants have written a letter seeking for the reasons the same has not been forthcoming. Though duly served the1

st

Respondent did notappear in Court to give an explanation as to why the restrictions had been placed on the said titles.The 2

nd

Respondent who placed the restriction has stated that it did not have an objection to the restriction being removed

.

It is not in doubt that the purpose upon which

restrictions are placed on a title to land is to

prevent any fraud

or

improper dealing

.There is no reason that has been advanced to this court as to why the restriction is in place or even why the restriction was put in the first place

Section 76(2) of the Land Restriction

states that:-

“Restrictions may endure for:

a. A particular period

b. Until the occurrence of a particular event or

c. Until the making of further orders

.

It is evident that restrictions are not supposed to endure indefinitely on a title.The restriction on the titles herein indicate that

‘restriction vide Hon. Paul Koinange letter dated 3

rd

April 2017’

.The Applicants are the registered owners of the suit properties. No evidence has been tendered as to why the restriction was put in place as the letter is even missing. There has been no evidence of any interest by the 1

st

Respondent over the suit properties toenable him put thesaid restrictions. Eventhat the 2

nd

Respondent is amenable to the restriction being removed, it would only mean that the restrictions remaining in place serves no purpose, but only serves to bar the Applicants from enjoying their rights and privileges over the suit properties .

The Applicants havealleged that even after applying to the Land Registrar to remove the restriction, the said Land Registrar has failed to do so and thus the filing of this application as provided by

Section 78(2) of the Land Registration Act

, which provides:-

“Upon the application of a proprietor affected by a restriction, and upon notice to the Registrar, the court may order a restriction to be removed, varied, or other order as itdeems fit, and may make an order as to costs”.

It is evident from the above provisions of law that the Court has power to remove any restriction on a title to land.The 1

st

Respondent did not appear in Court to explain why the restriction should not be removed and has no interest over the suit property. The 2

nd

Respondent is amenable to the restrictions being removed.This

Court therefore finds no reason why the said restrictions should remain

on the said titles and consequently, it finds and holds

that the Applicants Originating Summons dated

7

th

December 2018

is

merited

.

The Court allows the said Originating Summons entirely with costs.

It is so ordered.

Dated, signed

and

Delivered

at

Thika

this 30

th

day of

July

, 2020.

L. GACHERU

30/7/2020

JUDGE

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Judgment

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With consent of:

No Consent for the 1

st

Applicant

No Consent for the 2

nd

Applicant

No Consent for the 1

st

Respondent

No Consent for the 2

nd

Respondent

L. GACHERU

30/7/2020

JUDGE