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M'chabari M'itaru V Mary Kaburo M'njuki [2013] eKLR

Case Number: Elc Case 26 of 2012 Date Delivered: 17 Jun 2013

Judge: Peter Muchoki Njoroge

Court: High Court at Meru

Parties: M'chabari M'itaru v Mary Kaburo M'njuki

Citation: M'chabari M'itaru V Mary Kaburo M'njuki [2013] eKLR

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Richard N Kalembe Ndile & Another V Patrick Musimba Mweu & 2 Others [2013] eKLR

Case Number: Election Petition Nos 1 & 7 of 2013 (Consolidated) Date Delivered: 17 Jun 2013

Judge: David Shikomera Majanja

Court: High Court at Machakos

Parties: Richard N Kalembe Ndile & Caroline Mwelu Mwandiku v Patrick Musimba Mweu, Returning Officer Kibwezi West Constituency, Independent Electoral & Boundaries Commission

Citation: Richard N Kalembe Ndile & Another V Patrick Musimba Mweu & 2 Others [2013] eKLR

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James P. Maina Muriuki V Moses Maina Ngugi & Another [2013] eKLR

Case Number: Civil Case 157 of 2007 Date Delivered: 17 Jun 2013

Judge: Pauline Nyamweya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: James P. Maina Muriuki v Moses Maina Ngugi & another

Citation: James P. Maina Muriuki V Moses Maina Ngugi & Another [2013] eKLR

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Patrick Ngeta Kimanzi V Marcus Mutua Muluvi & 2 Others [2013] eKLR

Case Number: Election Petition 8 of 2013 Date Delivered: 17 Jun 2013

Judge: David Shikomera Majanja

Court: High Court at Machakos

Parties: Patrick Ngeta Kimanzi v Marcus Mutua Muluvi, Alice Kimani (Returning Officer) & Independent Electoral & Boundaries Commission

Citation: Patrick Ngeta Kimanzi V Marcus Mutua Muluvi & 2 Others [2013] eKLR

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Stephen Muchai Githinji V Consolidated Bank Of Kenya Ltd [2013] eKLR

Case Number: Civil Case 513 of 2012 Date Delivered: 17 Jun 2013

Judge: Jonathan Bowen Havelock

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Stephen Muchai Githinji v Consolidated Bank Of Kenya Ltd

Citation: Stephen Muchai Githinji V Consolidated Bank Of Kenya Ltd [2013] eKLR

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Starlite Pictures S.R.O. V The Owners Of The Motor Vessel “Indian Ocean Explorer [2013] eKLR

Case Number: Claim 5 of 2012 Date Delivered: 17 Jun 2013

Judge: Martin Muya

Court: High Court at Mombasa

Parties: Starlite Pictures S.R.O. v The Owners Of The Motor Vessel “Indian Ocean Explorer

Citation: Starlite Pictures S.R.O. V The Owners Of The Motor Vessel “Indian Ocean Explorer [2013] eKLR

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Jane Wambui Mwangi V Racheal Eanjiku Kariuki [2013] eKLR

Case Number: ELC Civil Suit 1010 of 2012 Date Delivered: 14 Jun 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jane Wambui Mwangi v Racheal Eanjiku Kariuki

Citation: Jane Wambui Mwangi V Racheal Eanjiku Kariuki [2013] eKLR

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J.A.S. Kumenda & Another V Clerk Municipal Council Of Kisii & 6 Others [2013] eKLR

Case Number: Misc Civil Appl 3 of 2013 Date Delivered: 14 Jun 2013

Judge: Samson Odhiambo Okong'o

Court: High Court at Kisii

Parties: J.A.S. Kumenda & Florence W Gatune v Clerk Municipal Council of Kisii, Municipal Council of Kisii, County Commissioner Kisii County, County Director of Environment, District Health Officer Kisii, District Commissioner Kisii Central District & Attorney General

Citation: J.A.S. Kumenda & Another V Clerk Municipal Council Of Kisii & 6 Others [2013] eKLR

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Washington Muthui Nderitu V Republic [2013] eKLR

Case Number: Criminal Appeal 57 of 2012 Date Delivered: 14 Jun 2013

Judge: Lilian Nabwire Mutende

Court: High Court at Machakos

Parties: Washington Muthui Nderitu v Republic

Citation: Washington Muthui Nderitu V Republic [2013] eKLR

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Josephat Kimani Mirara & 2 Others V Romano K. Mikigu [2013] eKLR

Case Number: ELC Suit 969 of 2012 Date Delivered: 14 Jun 2013

Judge: Pauline Nyamweya

Court: Environment and Land Court at Eldoret

Parties: Josephat Kimani Mirara, Joyce Wanjiku Muriuki & Joyce Wanjiru Maina v Romano K. Mikigu

Citation: Josephat Kimani Mirara & 2 Others V Romano K. Mikigu [2013] eKLR

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Peter Wanjohi Muthee V Bayer East Africa Limited & Another [2013] eKLR

Case Number: Cause 520 of 2011 Date Delivered: 14 Jun 2013

Judge: Nzioki wa Makau

Court: Industrial Court at Nairobi

Parties: Peter Wanjohi Muthee v Bayer East Africa Limited & Bayer Environmental Sciences Sa Limited

Citation: Peter Wanjohi Muthee V Bayer East Africa Limited & Another [2013] eKLR

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Stephen Kimani Karuu & 2Others V City Council Of Nairobi & Another [2013] eKLR

Case Number: Elc. Case. 271 Of 2010 Date Delivered: 14 Jun 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Stephen Kimani Karuu T/A Kiriiyu Merchants, Neno Evangelism Centre Registered Trustees & Jamaga International Limited v City Council Of Nairobi & Cera & Sany Limited

Citation: Stephen Kimani Karuu & 2Others V City Council Of Nairobi & Another [2013] eKLR

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Geminia Insurance Company Limited V Sedco Consultants Limited & Another [2013] eKLR

Case Number: Civil Case 315 of 2009 Date Delivered: 14 Jun 2013

Judge: Alfred Mabeya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Geminia Insurance Company Limited v Sedco Consultants Limited & National Industrial Credit Bank Ltd

Citation: Geminia Insurance Company Limited V Sedco Consultants Limited & Another [2013] eKLR

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Joseph Abuya & Another V Chief Magistrate, Kisii Law Courts And South Nyanza Sugar Co. Ltd [2013] eKLR

Case Number: JR Civil Application 6 of 2013 Date Delivered: 14 Jun 2013

Judge: Edward Muthoga Muriithi

Court: High Court at Kisii

Parties: Joseph Abuya,Joseph O. Obala v Chief Magistrate, Kisii Law Courts and South Nyanza Sugar Co. Ltd

Citation: Joseph Abuya & Another V Chief Magistrate, Kisii Law Courts And South Nyanza Sugar Co. Ltd [2013] eKLR

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Wilson Thirimbu Mwangi V Republic [2013] eKLR

Case Number: Criminal Application. Nai.1 of 2013 (Ur 1/2013) Date Delivered: 14 Jun 2013

Judge: John Wycliffe Mwera, Philomena Mbete Mwilu, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: Wilson Thirimbu Mwangi v Republic

Citation: Wilson Thirimbu Mwangi V Republic [2013] eKLR

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Mohamed Abdullahi Abdi V Al Hag Holdings Limited [2013] eKLR

Case Number: Civil Case 264 of 2008 Date Delivered: 14 Jun 2013

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Mohamed Abdullahi Abdi v Al Hag Holdings Limited

Citation: Mohamed Abdullahi Abdi V Al Hag Holdings Limited [2013] eKLR

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Nelson Bikundo Apima V Robert Apiemi Ongwano & 2 Others [2013] eKLR

Case Number: Election Petition 4 of 2013 Date Delivered: 14 Jun 2013

Judge: Norbert Okumu

Court: Election Petition in Magistrate Courts

Parties: Nelson Bikundo Apima v Robert Apiemi Ongwano, Independent Electoral & Boundaries Commission & Returning Officer West Mugirango Constituency

Citation: Nelson Bikundo Apima V Robert Apiemi Ongwano & 2 Others [2013] eKLR

Electoral Law – election petition – filing of election petitions – where the petition was drawn and filed by an advocate with no valid practise certificate – whether possession of a practising certificate is a procedural technicality – striking out election petition - whether an election petition could be struck out for being drawn by an advocate with no valid practising certificate – Advocates Act, section 9, 24

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Smvo Limited V Delta Haulage Services Limited [2013] eKLR

Case Number: Elc 100 of 2007 Date Delivered: 14 Jun 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Smvo Limited v Delta Haulage Services Limited

Citation: Smvo Limited V Delta Haulage Services Limited [2013] eKLR

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Gabriel Osindo & 14 Others V Morris Owuor Omollo & 3 Others [2013] eKLR

Case Number: ELC.Case 437 of 2013 Date Delivered: 14 Jun 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Gabriel Osindo & 14 others v Morris Owuor Omollo & 3 others

Citation: Gabriel Osindo & 14 Others V Morris Owuor Omollo & 3 Others [2013] eKLR

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA 

AT NAIROBI

Elc.  Case No.  437   Of 2013

GABRIEL OSINDO………….…..………………...................… 1ST PLAINTIFF

SAMSON ODHIAMBO………..……….………...................… 2ND  PLAINTIFF

DANIEL OWINO………….……………………....................…3RD  PLAINTIFF

MICHAEL ODHIAMBO…....………......................................… 4TH  PLAINTIFF

JOEL NJINGO....……….…….….………………...................…5TH  PLAINTIFF

THEOKRITUS ODEMBO……...…….……………………….…6TH  PLAINTIFF

EDDIE ONYANGO..................................... .............................…7TH  PLAINTIFF

DANIEL OWAGA………………..…...…. ………...................…8TH  PLAINTIFF

ZAKAYO AYUGI………………....………….……...................…9TH  PLAINTIFF

WILLIAM OFUETE……………....…………...…...................…10TH  PLAINTIFF

LUCAS OWINO…………………....……………...................…11TH  PLAINTIFF

AGGREY OCHIENG…………......………………...................…12TH  PLAINTIFF

 MICHAEL OGINGA……………........……………...................…13TH  PLAINTIFF

   JOHN MAGERO……………….….......…….....…………………14TH  PLAINTIFF

    TRANSLAUS  ODUNGA............................................................…15TH  PLAINTIFF

-VERSUS-

MORRIS OWUOR OMOLLO………………..……………...1STDEFENDANT

 JOHN PETER MAINA…………………..…………………..2ND  DEFENDANT

 KANGETHE…………………...……………………………..3RD  DEFENDANT

  AORON KIMOSO………..………………………….…..……4TH DEFENDANT

RULING

          Coming up before me for determination is the Notice of Motion application dated 8/4/13 brought under Order 40 Rule 1, 2, 3 and Section 3A of the Civil Procedure Act and all enabling provisions of the law.  It sought   the following orders:-

  1. Spent.
  2. That a temporary injunction do issue restraining the Defendants by themselves or by their agents and or servants or otherwise howsoever from evicting, disposing off and/or interfering with the Plaintiff’s possession of Plot Nos. 269/1-4  (the “Suit Property”) situated along Rabai Road, Harambee Estate pending the hearing of this application.
  3. That an injunction do issue restraining the Defendants by themselves or by their agents and/or servants or otherwise however from evicting, disposing off and/or interfering with the Plaintiff’s possession of the Suit Property pending the hearing of this Suit.
  4. The costs of this application be provided for.

        The application is premised upon the grounds appearing on the face of the application and the Supporting Affidavit of Gabriel Osindo sworn on the 8/4/13 in which he stated that the applicants herein are a group of people who are conducting various enterprises such as carpentry, welding and motor vehicle garages on the Suit Property since 1990 to date.

        He further stated that the applicants have applied for and obtained licenses from the City Council of Nairobi to conduct their various businesses on the Suit Property.  He also stated that they have gone ahead to build semi-permanent business structures on the Suit Property which has cost them substantial amounts of money.  He further swore that sometime in 2001, an intruder made efforts to evict them from the Suit Property which they robustly resisted.  He further swore that they were shocked to learn that the 1st, 2nd and 4th Defendants have purportedly acquired title documents over the Suit Property and have now sold the same to the 3rd Defendant and his assigns.  He also stated that they have been served with a notice from the District Officer to vacate the Suit Property within two days to allow the aforementioned purported title holders and/or their assigns to occupy the Suit Property. He further stated that he holds the view that the aforesaid allocation is unlawful and illegal as they have occupied the Suit Property since 1990 without interruption in Adverse Possession.  He further swore that the applicants are poor people who have done their best to live honestly and peaceably and the unlawful actions of the Defendants will greatly prejudice them as they have nowhere else to go.

        The application is uncontested.  Despite being duly served with the application and a hearing notice, the Defendants did not appear in court or file a Replying Affidavit.  There is an Affidavit of Service in the file.

        In deciding whether to grant the temporary injunction, I wish to refer to and rely on the precedent set in the case of Giella v. Cassman Brown [1973] EA 258 in which the conditions for the grant of an interlocutory injunction were settled as follows:

The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success.  Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages.  Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”

        Have the Applicants made out a prima facie case with a probability of success?  In the case of Mrao v  First American Bank of Kenya and Two Others [2003] KLR 125, a prima facie case was described as:-

 “a prima facie case in a civil application  includes but is not confined to “a genuine and arguable case”.  It is a case which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.

        Have the applicants established a prima facie case with a probability of success?  To my mind, I am not convinced that the applicants have established a prima facie case with a probability of success.  Their only claim to the Suit Property is that since 1990, they have occupied the same and have conducted their various businesses there.  They claim ownership under the doctrine of Adverse Possession.  However, their claim has not been determined by any court of law.  Hence, as matters stand at this juncture, they have absolutely no proof that they are the proprietors of the Suit Property.  The fact that the City Council of Nairobi has routinely issued them with annual licenses to conduct their businesses on the Suit Property does not in any way confer upon them ownership rights over the Suit Property.

Further, investing in the Suit Property by developing semi-permanent structures therein also does not confer upon them ownership rights whatsoever.  Overall, I stand unconvinced that the applicants have established a prima facie case with a probability of success.  This being my finding, I rule that it is unnecessary to consider whether the other two conditions in the Geilla case cited above have been met.

          In light of the foregoing, I hereby dismiss this application.  No order as to costs.

SIGNED AND DELIVERED AT NAIROBI ON THE 14TH  

DAY OF JUNE  2013

MARY M. GITUMBI

JUDGE

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Felister Wanjiru Mukuria & Another V Abdullahi Hussein Mohamed Hussein [2013] eKLR

Case Number: ELC Suit 815 of 2012 Date Delivered: 14 Jun 2013

Judge: Pauline Nyamweya

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Felister Wanjiru Mukuria & another v Abdullahi Hussein Mohamed Hussein

Citation: Felister Wanjiru Mukuria & Another V Abdullahi Hussein Mohamed Hussein [2013] eKLR

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Kenya Canners Sacco Society Ltd V Craft Silicon Ltd [2013] eKLR

Case Number: 321 OF 2011 (O.S) Date Delivered: 14 Jun 2013

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Kenya Canners Sacco Society Ltd v Craft Silicon Ltd

Citation: Kenya Canners Sacco Society Ltd V Craft Silicon Ltd [2013] eKLR

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Jacob Mwanto Wangora V Gedion M. Wangora & 3 Others [2013] eKLR

Case Number: Environment And Land Division Case 982 of 2012 Date Delivered: 14 Jun 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jacob Mwanto Wangora v Gedion M. Wangora & 3 others

Citation: Jacob Mwanto Wangora V Gedion M. Wangora & 3 Others [2013] eKLR

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ENVIRONMENT AND LAND DIVISION CASE NO. 982 OF 2012

    JACOB MWANTO WANGORA...........PLAINTIFF/RESPONDENTS

=VERSUS=

GEDION M. WANGORA .......1ST DEFENDANT/RESPONDENT

JONATHAN K KIRORIO .......2ND DEFENDANT/RESPONDENT

SAMWEL S KIRORIO............3RD DEFENDANT/RESPONDENT

LENANA KIRORIO...............4TH DEFENDANT/RESPONDENT

RULING:

The Applicant herein Jacob Mwanto Wangora has brought this Notice of Motion dated 6th December, 2012 under Order 40 Rule 1 & 2 of the Civil Procedure Rules and Section 1b & 3(a) of the Civil Procedure Act and Section 78(2) of the Land Registration Act 2012 and has sought for various orders:-

  1. That pending the hearing and determination of this suit, the Court be pleased to grant a temporary injunction restraining the Defendants/Respondents or their servants /agents and/ or licensee from interfering with the peaceful enjoyment of the plaintiffs property known as Ngong/Ngong 2141.
  2. That the Court to order the Respondent to withdraw a restriction placed on the title number Ngong/Ngong 2141 on 25th September, 2012 failure to which the land Registrar Ngong be directed to remove it.
  3. That the OCS Ngong be directed to offer security.
  4. Cost of the application be provided for.

The application was supported by the grounds on the face of the application and by the Affidavit of Jacob Mwanto Wangora .  These grounds were that the Plaintiff is the registered proprietor of all that parcel of land known as Ngong/Ngong 2141 since 1974.  That further the Respondents have put a restriction on the property and yet they have no claim whatsoever over the property.

That the Respondents have restrained the applicant from enjoying his property and that has caused his mental pain and torture.  That the Respondents would not suffer any prejudice as this is the applicants’ property.

The applicant in his supporting affidavit averred that, he bought a parcel of land in 1974 from one John Olaata Ole Roimen.  The original parcel of land was Ngong/Ngong/1291 which was later subdivided to create two parcels i.e Ngong/Ngong/2140 and Ngong/Ngong/2141.  Applicant contended that he was registered as a proprietor of Ngong/Ngong/2141 on 4/2/1974 and issued with Land Certificate now marked JMWI.  He further alleged that he has been utilizing the land and has occupied it since then.

However, the Respondents laid claim to his parcel of land since 1992.  They also instigated the person who sold land to him, John Olaata Ole Roimen, to file a claim against him.  The two matters were decided against the applicants by the District land Dispute Tribunal and later the Provincial Land Dispute Appeal Committee (Rift Valley).  However, the High Court later ruled in favour of the application HCCA No. 312 of 2002 and HCCA 486/2001 as evidenced by JMWO2 and JMWO3.

Applicant further contended that, the Respondents further instigated criminal case No. 1202 /205 against him.  The criminal court did not make a finding against his title.  The Respondents have nevertheless put a restriction on his parcel of land on 25/9/2012 until criminal case No. /202/2005 and Appeal no. 468/2009 have been finalized as evidenced by JMW6.  He averred that he bought the land in 1974 and Respondents have no claim over the same.  That the restriction has no basis on law and it is therefore illegal.

Applicants therefore, prayed to court to remove the restriction and or order an injunction restraining the Defendants from harassing him.

The application was opposed.  The Respondents through Gideon Wangora Kiror filed a replying affidavit and denied the allegations made by the applicant. The Respondents averred that he is not the one who has put a restriction on the LR. NO. 2141 but the land Registrar Ngong, in conjunction with the late John Olaata Roimen’s son, Henry Saloan Roimen as evidenced by GWK2.

He further alleged that applicant has not fully disclosed the matter:- that he was convicted in criminal case no. 1202/2005 for obtaining registration by false registration of Ngong/Ngong 2139 and 2141.  Respondent further contended that applicant had filed Civil Case No. 687/2004 at the Chief Magistrate’s Court claiming LR.No. Ngong/Ngong/2141 against the Respondents but the same was struck out as per GWK5.

 That the issue of boundary dispute in Ngong/Ngong/2141 has never been determined by the Court.  He further averred that applicant has come to Court with unclean hands and the orders sought should not be granted. The applicant filed a further affidavit and stated that the Replying Affidavit was sworn by a stranger and the people who also gave him authority were strangers to the suit.  Thus, the respondents have no Locus Standi. 

Applicant asked the Court to strike out the Replying Affidavit and the authority to act.  He further contended that the Restriction on LR No. Ngong/Ngong/2141 was by Samuel Shena  Kirorio and Gideon Wangora Kirorio under letter dated 25/9/2012 and not through the caution by Henry Salaon Roimen.

The parties herein canvassed the application through written submissions.  I have now considered the notice of motion dated 6/12/2012 and the annextures thereon.  I have also considered the written submission and the relevant Law and i make the following findings.  The applicant herein is seeking for Injunctive orders and also for removal of restriction.  The applicant had a duty to demonstrate that he has a prima facie case with high probability of success.  He also needed to demonstrate that he will suffer irreparable loss and injury which cannot be compensated by way of damages and if the Court is in doubt to decide on the balance of convenience.

The applicant also needed to prove that the restriction on LR No. Ngong/Ngong/2141 was illegal and not justifiable.  I have considered JMW1, Land Certificate issued on 4/2/1974.  The same is in the names of the applicant herein Jacob Mwanto Wangora.

I have also considered HCCA No.486/2001 and HCC No. 312/2002.  The two Appeals we decided in favour of the applicant herein.  The applicant is the registered owner of Ngong/Ngong/2141 and he is entitled to interest conferred by section 27(a) of the Registered Land Act (now repeated).  The same position is repeated in section 24(a) of the land Registration Act which states. “ The Registration of a person as the proprietor of land shall vest in all that person the absolute ownership of that land together with all rights and privilege belonging to or appurtenant thereto”  

Through there is evidence that the applicant herein was convicted in CR.No.1202/2005, his title No. Ngong/Ngong/2141 was never cancelled.  He is still the registered owner and that is a prima facie evidence that he is the absolute and indefeasible proprietor or owner of that parcel of land.  Though applicant herein was convicted, the court did not make an order for restriction as provided for by section 80(a) of the Land Registration Act which reads “ The Court may order the restriction of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake”

Applicant alleged that, whenever he attempts to enter into his parcel of land, the Respondents do accost him and he has thus been harassed and intimidated by the Respondents. Respondent Gideon Wangora Kirorio did admit that when applicant appeared on the suit land, he approached him with an AP Policeman and applicant was asked to keep away until cases were settled.  Which where these cases?  Criminal case No. 1202/2005 had been decided and so is Appeal No. 468/2009.

 In both cases, the applicant was never deprived off his Title LR No. Ngong/Ngong/2141.  The applicant has demonstrated that he has a title to this parcel of land and thus he has a prima facie case with high probability of success (refer to case of Giella Vs Cassman Brown Co.Ltd, 1973 (EA) 358).

Due to the numerous cases that have been brought to Court by Respondents, the applicants has not been enjoying quiet possession of this parcel of land.  He has also not been using the same.  The applicant has therefore suffered loss which cannot be compensated by way of damage.

The lease certificate is in the names of the applicant.  At no time has the said lease certificate been in the name of the Respondents herein.  The balance of convenience tilts in favour of the Applicant herein.

On the second prayer of removal of restriction, I have considered the lease certificate and certificate of official search JMW6.  There is no doubt that on 25/9/2012, a restriction was placed on LR No. Ngong/Ngong 2141 stating that “no dealing to be registered until criminal case no 1202/2005 and Appeal no 468/2009 are finalized’’.  The same was placed on the strength a letter dated 25/9/2012 by Samuel Shena and Gideon Kirorio.

Section 76 of the Land Registration gives the Registrar power to put a restriction on any particular land or lease.  However, the said section states that the registrar has to direct that inquiries be made and  notices to be served and hearing such a person before making an Order for Restriction.  The Land Registration Act came into effect on 2/3/2012 .  The Restriction herein was placed on 25/9/2012 .  There was no evidence that the Registrar made any inquiries, issued notices and heard the persons. 

The Registrar only relied on the letter dated 25/9/2012 .  The Registrar therefore did not follow the right procedure in placing the restriction as the person concerned was not heard.  Section 76(2) provides that a restriction may be expressed to endure

  1. For a particular period.
  2. Until the occurrence of a particular event or
  3. Until the making of a further order.

In the instant case, the restriction was to endure until the finalization of Criminal Case No. 1202/2005 and Appeal No. 468/2009.

I have perused the Judgement in criminal case No. 1202/2005 GWK3 and I note the case was finalized on 16/10/2009.  Again criminal appeal No. 408/2009 GWK was finalized on 27/9/2011.  The restriction was pegged on the finalization of these two cases.  However, by 25/9/2012 when the restriction was placed on Ngong/Ngong/2141, the two cases had been finalized.  The Respondents were therefore not honest in seeking to place a restriction on the suit land.  The restriction was not tenable or justifiable.

Section 78(2) of the Land Registration Act, gives the Court power to order removal or vacation of the restriction on a parcel of land. 

The Court finds that in the instant case, proper procedure was not followed in placing the restriction on the parcel of land as provided by section 76 of the Land Registration Act 2012.  The Restriction was pegged on an event that has already passed.  The Restriction was not justifiable and therefore it is illegal. 

This Court will not hesitate to order for its removal.

This Court now having considered the applicant’s application dated 6/10/2012 finds that the same is merited.  Consequently, the Court allows the applicants’ prayers in terms No.3, 4 and 5.

  • The applicant is also entitled to costs of this application.
  • It is so ordered.

Dated, Signed and delivered this 14th day of June 2013.

L.N. GACHERU

In the Presence of:-

None Attendance for the Plaintiff/ Applicant

Abongo  holding brief Maranga  for the Defendant

Anne: Court Clerk

L.N. GACHERU

 

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Jack & Jill Supermarket Ltd V Viktar Maina Ngunjiri [2013] eKLR

Case Number: 422 of 2012 Date Delivered: 14 Jun 2013

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Jack & Jill Supermarket Ltd v Viktar Maina Ngunjiri

Citation: Jack & Jill Supermarket Ltd V Viktar Maina Ngunjiri [2013] eKLR

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Simon Chesoli Wachia V Continental Developers Ltd [2013] eKLR

Case Number: 5757 of 1991 Date Delivered: 14 Jun 2013

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: Simon Chesoli Wachia v Continental Developers Ltd

Citation: Simon Chesoli Wachia V Continental Developers Ltd [2013] eKLR

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Bishop Geoffrey Muriungi Kiraithe & Another V Edward Musa Matiru Karuga [2013] eKLR

Case Number: Elc 1015 of 2012 Date Delivered: 14 Jun 2013

Judge: Lucy Nyambura Gacheru

Court: High Court at Nairobi (Milimani Commercial Courts Commercial and Tax Division)

Parties: Bishop Geoffrey Muriungi Kiraithe & another v Edward Musa Matiru Karuga

Citation: Bishop Geoffrey Muriungi Kiraithe & Another V Edward Musa Matiru Karuga [2013] eKLR

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John Muigai S/o Sidoney Mungai V Timothy Macharia Mahindi & 2 Others [2013] eKLR

Case Number: Elc Case 238 of 2013 Date Delivered: 14 Jun 2013

Judge: Mary Muthoni Gitumbi

Court: High Court at Nairobi (Milimani Law Courts)

Parties: John Muigai s/o Sidoney Mungai v Timothy Macharia Mahindi & 2 others

Citation: John Muigai S/o Sidoney Mungai V Timothy Macharia Mahindi & 2 Others [2013] eKLR

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Kenya Kazi Security Services Limited V Kenya National Private Security Workers Union [2013] eKLR

Case Number: Civil Application 108 of 2013 (UR 71/2013) Date Delivered: 14 Jun 2013

Judge: David Kenani Maraga, Jamila Mohammed, Stephen Gatembu Kairu

Court: Court of Appeal at Nairobi

Parties: Kenya Kazi Security Services Limited v Kenya National Private Security Workers Union

Citation: Kenya Kazi Security Services Limited V Kenya National Private Security Workers Union [2013] eKLR

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J K I V Al Hag Holdings Ltd [2013] eKLR

Case Number: Civil Case 75 of 2011 Date Delivered: 14 Jun 2013

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: J I K v Al Hag Holdings Ltd

Citation: J K I V Al Hag Holdings Ltd [2013] eKLR

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In Re The Matter Of John Gati Tatiyo (Deceased) [2013] eKLR

Case Number: Misc Application 455 of 2012 Date Delivered: 14 Jun 2013

Judge: Hatari Peter George Waweru

Court: High Court at Nairobi (Milimani Law Courts)

Parties: In re the matter of John Gati Tatiyo (Deceased)

Citation: In Re The Matter Of John Gati Tatiyo (Deceased) [2013] eKLR

Constructive dismissal

Catherine Kinyany v Mcl Saatchi & Saatchi [2013] eKLR

1795 of 2011

Industrial Court at Nairobi

Maureen Onyango

May 15, 2013

Reported by Njeri Githang’a

 

The claimant was employed by the respondent on September 1, 2003 as General Manager and was promoted to Managing Director in January 2006. She served in that position until January 21, 2011 when she was suspended to allow the respondent carry out investigations. She alleged that the investigations were unwarranted as no complaint had been lodged against her.  She tendered her resignation on February16, 2011 which she alleged was constructive dismissal.

Issue

  1. Whether one could claim constructive dismissal after resigning voluntarily.

Employment law- dismissal – constructive dismissal- evidence required for a claim of constructive dismissal to succeed

 Held;

  1. For a claim of constructive dismissal to succeed, the claimant must show that the respondent acted in a way that made it extremely hard for the claimant to continue working.
  2. There was no evidence of constructive dismissal, the respondent actually sent the Claimant on suspension to enable it carry out investigations which was the beginning of a disciplinary process that may have led to disciplinary action being taken against the Claimant.  The Claimant however did not wait for the disciplinary process to be concluded. 

Claim for constructive dismissal disallowed

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Parties: Mereka & Co.Advocates v Engineer A.S. Kitololo t/a Kitololo Consultants Engineers

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Case Number: E.L.C 2 of 2013 Date Delivered: 14 Jun 2013

Judge: Anthony Ombwayo

Court: High Court at Nyeri

Parties: Deborah Muthoni Njoroge v Mwangi Kamau

Citation: Deborah Muthoni Njoroge V Mwangi Kamau [2013] eKLR

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

ENVIRONMENT AND LAND COURT

E.L.C NO.2 OF 2013

DEBORAH MUTHONI NJOROGE.....................................PLAINTIFF

VERSUS

MWANGI KAMAU...........................................................DEFENDANT

J U D G M E N T

          The plaintiff's claim is based on an agreement in writing dated 11/7/2012 between the plaintiff and the defendant where the latter agreed to sell to the former 0.6 acres of land that was to be partitioned and subdivided out of land parcel No. Loc.2/Kangari/1346 for a consideration of Kshs.430,000/=.

          The plaintiff paid a down payment of Kshs.230,000/= leaving a balance of Kshs.200,000/= that was to be paid after completion of the Land Control Board meeting  and subdivision thereof.

          The plaintiff took the responsibility of paying all necessary fees required by the Land Control Board but the defendant refused or failed to attend and therefore stalling the transaction.

          The plaintiff instituted this suit in compliance with order 3 rule 2 and filed a statement upon which she relied and also gave her testimony.

          She seeks a refund of Kshs.230,000 plus interest as agreed in clause 8 of the agreement or in the alternative the court to compel the defendant to subdivide the suit land and transfer 0.6 acres to the plaintiff as agreed.

          The plaintiff produced a copy of the sale agreement, a receipt indicating that she had paid fees for the meeting of the Land Control Board, a copy of the certificate of the official search dated 13/7/12 indicating that Mr. Mwangi Kamau the defendant herein is the proprietor of the subject land, and a demand letter dated 4/8/2012.

          The defendant was served with the plaint and summons to enter appearance but neither filed appearance nor defence hence the matter was listed for formal proof.

          I have considered the pleadings, witness statement and the testimony of the plaintiff and do find that there was a valid contract between the plaintiff' and the defendant. The plaintiff performed her obligation by paying the consideration as required in law, however the defendant breached the express terms of the contract by failing to  transfer 0.6 acres to the plaintiff and therefore I do  enter judgment for the plaintiff in terms of prayers (a) and (b) of the plaint. For avoidance of doubt the defendant is ordered to  either  refund the plaintiff  the money paid as deposit plus interest as per the agreement, or a transfer of 0.6 acres out of land parcel No Loc.2/Kangari/1346.  Orders accordingly.

Dated and Delivered at Nyeri this 14th day of June 2013

 

A. OMBWAYO

JUDGE

 

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Mistake of a newly admitted advocate can be a ground for extension of time within which to file an appeal to the Court of Appeal

Joseph Wanjohi Njau v Benson Maina Kabau

Civil Application No Nai 97 of 2012

Court of Appeal at Nyeri

K M’Inoti JA

June 13, 2013

Reported by Njeri Githang’a Kamau & Victor L. Andande

 

Brief facts

This was an application for extension of time within which to file an appeal to the Court of Appeal upon expiry of the statutory period. The explanation for the delay in filing the notice of appeal and the record of appeal as explained by the applicant was that the junior advocate was deputed to take the judgment. However, being an advocate of only two months standing, she forgot to record on the file the outcome of the appeal and also to communicate that outcome to the senior advocate. It was only in while routinely going through his files that the senior advocate noticed that there was no progress in the file. Upon inquiring from the junior advocate what had transpired on judgment day, she could not even recall. So he sent his clerk to court, who obtained a copy of the judgment. Thereafter he conferred with the applicant for instructions, culminating in the filing of the instant application some 9 days after learning about and obtaining the judgment.

Issue

  1. Whether mistake by a newly admitted advocate could be a ground for extension of time within which to file an appeal to the Court of Appeal.

Civil Practice and Procedure extension of time – application for extension of time within which to file an appeal to the Court of Appeal – grounds for allowing extension of time within which to file an appeal – whether mistake of a newly admitted advocate could be a ground upon which the court could grant an extension of time – Appellate Jurisdiction Act, sections 3A & 3B, Court of Appeal Rules, rule 4.

Held

  1. The reason for the delay in filing the notice of appeal was candidly explained by the applicant. This was through the deposition that the junior counsel who took the judgment was only two months into practice and made the blunder that prevented the filling of the notice of appeal within the prescribed 14 days from the date of the judgment. Thus, in the particular circumstances the court was willing to excuse the mistake of a newly admitted advocate, though much more was expected from her employer.
  2. An arguable appeal was not one that had to necessarily succeed, but one which could be argued fully before the court. For the foreseeable future, the Court of Appeal still remained the court of last resort for the majority of Kenyans, and it was not advisable, unless for compelling reasons, to shut out parties from ventilating their grievances in the Court. Thus, since the dispute in the instant case revolved around land it would be prudent to have it determined on merit on appeal.

Application allowed with costs to the respondent.

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