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ELCPartially AllowedNotice of Motion dated 20th December 2018 (suit over L.R No. Nakuru Municipality Block 6/29 and LR No. 7935/5 Eburu)

Alice Kariuki v Telcom Kenya Limited; Land Registrar Nakuru(Intended Defendant/Respondent) [2020] KEELC 1332 (KLR)

Environment and Land Court
24 September 2020
1,434 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered a caution removed from a Nakuru land title, confirming a failed injunction ruling can override a caution and that the Land Registrar need not be sued.

What this practically means

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Executive summary

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This is a ruling by J M Mutungi, Judge, delivered virtually at Nakuru on 24th September 2020 in an Environment and Land Court suit concerning L.R No. Nakuru Municipality Block 6/29 and LR No. 7935/5 Eburu. The plaintiff sued in 2016 for injunctive relief, specific performance and damages founded on a sale agreement dated 15th December 2015, which was not completed within the contractual 90 days, prompting the defendant's cancellation notice of 20th May 2016. The plaintiff lodged a caution claiming a purchaser's interest on 25th May 2016. Her interlocutory injunction application was dismissed on 16th May 2017, Munyao, J finding no prima facie case, and that ruling was not appealed. The defendant then moved by Notice of Motion dated 20th December 2018 under Sections 1A, 1B and 3A of the Civil Procedure Act, Section 73(1) of the Land Registration Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking joinder of the Land Registrar Nakuru and removal of the caution, the Registrar having declined to remove it absent an express court order. The plaintiff opposed, arguing abuse of process and that the caution protected her purchaser's interest. The court held the caution could not stand because it rested on the same facts already rejected in the unappealed injunction ruling, which superseded the registration. Joinder of the Registrar was refused as unnecessary since he would be bound by the court's order. The application was allowed in terms of the prayer for removal of the caution, with no order for costs, each party bearing their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Land Registrar Nakuru should be enjoined as a party to the suit
  2. 2.Whether the caution registered by the plaintiff on 25th May 2016 over L.R No. Nakuru Municipality Block 6/29 should be removed pending hearing and determination of the suit

Key legal issues

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01

Whether the caution should be withdrawn

Holding

The caution was refused sustenance because the facts underlying it were the same facts on which the plaintiff failed to obtain an injunction in the unappealed ruling of 16th May 2017

Reasoning

The caution and the injunction application rested on the same sale agreement and alleged purchaser's interest. The Court had found the allegations unsubstantiated and dismissed the injunction, and that ruling was not appealed. The dismissal, therefore, superseded the registration of the caution and there was no basis to sustain it.

p. 2
02

Whether the Land Registrar should be joined

Holding

Joinder refused; the Registrar is not a necessary party

Reasoning

The Registrar acted under his statutory mandate in registering the caution; the affected parties are the plaintiff and defendant, either of whom may apply for withdrawal or extension of the caution. The Registrar would be bound by any court order, so joinder is unnecessary.

p. 2

Legal principles established

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  • A party affected by a caution may apply to Court for its withdrawal without enjoining the Land Registrar, who will be bound by the order made
  • A court ruling dismissing an interlocutory injunction, if unappealed, supersedes a caution registered on the same facts

Court orders

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  1. 1.The defendant's application allowed in terms of prayer (3) of the Notice of Motion dated 20th December 2018, i.e. removal/withdrawal of the caution registered against title Number Nakuru Municipality Block 6/29
  2. 2.No order for costs; each party to bear their own costs of the application
  3. 3.Joinder of the Land Registrar Nakuru as a party refused

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 1A, 1B & 3A of the Civil Procedure Act, Section 73(1) of the Land Registration Act, 2012 and Order 51 Rule 1 of the Civil Procedure Rules

Relief refused

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Joinder of the Land Registrar Nakuru County as a party to the suit

The Registrar was merely executing his statutory mandate and is not a necessary party; he would be bound by any order the Court makes

p. 2

Costs of the application

The court made no order for costs

p. 2

Costs

Each party will bear their own costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, I find this a proper and fitting case for the Court to order the withdrawal of the caution registered against title Number Nakuru Municipality Block 6/29.
p. 2removal of caution
The order of the Court dismissing the plaintiff's application for injunction superseded the act of the Land Registrar of registering the caution.
p. 2effect of unappealed injunction ruling on caution
The Land Registrar is not a necessary party in the proceedings and need not to be enjoined.
p. 2joinder of Land Registrar refused
I make no order for costs of the application. Each party will bear their own costs of the application.
p. 2costs

Issues in the judgment

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minor

Judgment refers to 'the plaintiff' with both male and female pronouns, and the supporting affidavit is by Robert K Irungu described as the defendant's Legal Advisor, leaving party identities imprecise

material

Application allowed 'in terms of prayer (3)' although prayer (3) in the quoted motion is the costs prayer; the substantive relief is prayer (2) (removal of caution)

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, "Alice Kariuki v Telcom Kenya Limited; Land Registrar Nakuru(Intended Defendant/Respondent) [2020] KEELC 1332 (KLR)", Case Analysis (2020). Notice of Motion dated 20th December 2018 (suit over L.R No. Nakuru Municipality Block 6/29 and LR No. 7935/5 Eburu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1332/eng@2020-09-24

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