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|Case Number:||Civil Suit 998 of 1976 (OS)|
|Parties:||Nyakinyua & Kang’ei Farmers Co Ltd v Kariuki & Gathecha Resources Ltd|
|Date Delivered:||06 May 1976|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Leslie Gerald Eyre Harris|
|Citation:||Nyakinyua & Kang’ei Farmers Co Ltd v Kariuki & Gathecha Resources Ltd  eKLR|
|Parties Profile:||Individual/Private Body/Association v Individual/Private Body/Association|
Nyakinyua & Kang’ei Farmers Co Ltd v Kariuki & Gathecha Resources Ltd
High Court, Nairobi 30th April; 5th, 6th May 1976
Government Land - registration - caveat- notice to withdraw- date on which notice given - improper removal of caveat from register- jurisdiction to extend period of caveat - Government Lands Act (cap 280), section 116(1)
The caveator lodged a caveat against certain land in the registry of Government Lands claiming a purchaser’s interest. The caveat was duly registered. Later, the caveatee applied to the registrar under section 116(6) of the Government Lands Act to have the caveat removed. By letter dated 2nd April 1976, posted on 7th April and served on the caveator on 13th April, the registrar informed the caveator of the application and gave notice under section 116(6) to withdraw the caveat within twenty-eight days; if the caveat were not so withdrawn, it would be removed at the end of that time unless it was extended by order of the court. The caveatee caused the register to be searched on 3rd May 1976 and on that date the caveat had been removed from the register. The caveator applied to the Court for an extension of the period. On the questions whether the period of twenty-eight days allowed by section 116(6) ran from the date of the notice or some other date and whether the Court had jurisdiction to extend the period after the removal of the caveat from the register,
(1) That a notice under 116(6) could not be said to have been given before it had left the hands of the registrar. Parmer v Singh (unreported) and Khushal v Gilani  EA 370 distinguished.
(2) That the time limit specified in section 116(6) must be applied strictly and hence the caveat could not have been lawfully removed from the register on 3rd May 1976; accordingly, the application for extension was defeated by the purported removal of the caveat from the register.
Cases referred to in judgment:
Khushal v Gilani  EA 370.
Parmer v Singh (unreported) Civil Case 259 of 1963, Supreme Court.
The caveator, Nyakinyua & Kang’ei Farmers Co Ltd, applied to the High Court (Civil Suit No 998 of 1976 (OS)) for the extension of the period of its caveat registered in the registry of Government Lands. The application was opposed by the caveatee, Kariuki & Gathecha Resources Ltd. The facts are set out in the judgment
SS Jowhal (instructed by SS Jowhal & Co) for the Caveator.
Njiraini (instructed by JK Kibicho & Co) for the Caveatee.
Cur adv vult
|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 HIGH COURT AT NAIROBI
CIVIL SUIT NO 998 OF 1976 (OS)
NYAKINYUA & KANG’EI FARMERS CO LTD .…......APPLICANT
KARIUKI RESOURCES LTD…….…………....….RESPONDENT
This is an application by the Nyakinyua & Kang’ei Farmers Co Ltd (to which I will refer as “the caveator”) for an extension of the time of operation of a caveat lodged by it pursuant to section 116(1) of the Government Lands Act in the registry of Government Lands affecting the lands registered in that registry and known as L R 31 Ruaraka in the City of Nairobi, the property of the company known as Kariuki & Gathecha Resources Ltd (to which I will refer as “the caveatee”). It appears that the caveat was lodged by the caveator on 5th June 1974 claiming a purchaser’s interest in the premises by virtue of an agreement for sale between the parties which agreement has not yet been implemented and which is the subject of an action for specific performance by the caveator now pending. The caveat has been registered in volume 6, folio 467/52.
Subsequent to its registration, the caveatee applied to the registrar under section 116(6) to have the caveat removed and, by a letter dated 2nd April 1976, the registrar informed the caveator of this application and gave it notice under section 116(6) to withdraw the caveat within twenty-eight days from the date of the service of the notice, failing which the caveat would be removed by the registrar at the expiry of that period unless it was extended by an order of the court. The present application is for such extension; the caveator by its counsel requesting that the caveat should be extended until either the premises shall have been transferred to the caveator or the pending suit for specific performance shall have been determined.
In an affidavit in support of the application the advocate for the caveator states that the notice dated 2nd April 1976 was posted on 7th April 1976 by registered post and served on the caveator on 13th April 1976. In an affidavit subsequently filed by the caveatee none of these facts is disputed but it is stated that a search of the title by the advocate for the caveatee disclosed that by 3rd May 1976 the caveat had already been removed and its removal recorded in an entry in volume 48, folio 397/56.
The application for extension of the caveat is opposed on two grounds, namely, that the period of twenty-eight days should be computed from the date of the notice rather than either the date of posting or the date of actual receipt and, secondly, that as the caveat has already been removed the Court has no power to extend the period given in the notice. In support of his first ground counsel for the caveatee relied upon the decision of this Court in Khushal v Gilani  EA 370, in which I followed the earlier decision of Miles J in Parmer v Singh (unreported). I am satisfied, however, that those cases are readily distinguishable on the facts from the present case and that it would be impossible to hold that a notice in writing by the registrar under section 116(6) of the Act can be said to have been “given” to the addressee before it even leaves the hands of the giver. The first ground of objection to the application therefore fails.
The second ground must depend for its correctness upon the legality of the registrar’s action in purporting to remove the caveat before the time specified in both the notice and section 116(6) had expired. Time is of the essence in relation to section 116(6) and just as a caveator who neglects to take the necessary steps to protect himself within the time prescribed by the subsection may find himself penalised for this delay, so also he is entitled to rely upon the time so prescribed as affording him full protection if he acts within it. For this reason I am satisfied that the purported removal of the caveat on or before 3rd May 1976 was unlawful and of no legal effect and that I must regard the caveat as being still validly on the title. The second ground of objection to the application therefore also fails.
I am satisfied on the facts and the merits that the caveator’s application must succeed and, accordingly, I direct that the operation of the caveat be extended until such time as either the premises in question shall have been transferred to and registered in the name of the caveator or the suit for specific performance now pending for the sale of the premises shall have been determined in favour of the caveatee or until further order of the court. The caveatee’s objection to this application was quite unmeritorious and the caveator will have its costs when taxed.
Dated at Nairobi on this 6th Day of May 1976