Bikashai Muthubhai Patel,Cyprian Iburi Ngaruro & Frank Kambe Mwongera v Maccu Motors Ltd, Yusuf Musa Mucheke,Kariuki t/a Gt Motors, Gervasio Kariuki, Salim Kimathi, James Mbaabu, John Kuria, Francis Muriithi, John Gatembu, Henry Muriungi, Nicholas Kinyua & Njoroge t/a Sunbird Services [2021] KEELC 249 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MERU

ELC NO. 31 OF 2018

BIKASHAI MUTHUBHAI PATEL ..................1ST PLAINTIFF

CYPRIAN IBURI NGARURO .........................2ND PLAINTIFF

DR. FRANK KAMBE MWONGERA ..............3RD PLAINTIFF

VERSUS

MACCU MOTORS LTD ...................................1ST DEFENDANT

YUSUF MUSA MUCHEKE ............................ 2ND DEFENDANT

MR. KARIUKI T/A GT MOTORS .................3RD DEFENDANT

GERVASIO KARIUKI .....................................4TH DEFENDANT

SALIM KIMATHI .............................................5TH DEFENDANT

JAMES MBAABU............................................. 6TH DEFENDANT

JOHN KURIA ....................................................7TH DEFENDANT

FRANCIS MURIITHI .......................................8TH DEFENDANT

JOHN GATEMBU ..............................................9TH DEFENDANT

HENRY MURIUNGI .......................................10TH DEFENDANT

NICHOLAS KINYUA.......................................11TH DEFENDANT

NJOROGE T/A SUNBIRD SERVICES .........12TH DEFENDANT

RULING

1. Through an application dated 11. 8.2021 the plaintiff seeks for the cancellation of inhibition orders issued on 19. 7.2005 over Parcel No. Meru Municipality Block 11/50 and that the land registrar Meru Central District to be served with the orders.

2. The application is supported by an affidavit sworn on 12. 8.2021. The grounds are that the inhibition orders were issued at the request of the 2nd defendant vide application dated 16. 6.2005 pending the suit; the suit was determined on 3. 6.2019; an appeal was preferred by the 1st defendant in which by a ruling dated 9. 7.2021 the Court of Appeal declined to issue any stay or inhibition orders and lastly there is no good reason to have the orders of inhibition in place.

3. The 1st defendant opposes the application through grounds of opposition dated 8. 10. 2021 on the reasons that a right of appeal is a constitutional one; there is need to preserve the subject matter; the appeal is yet to be heard and lastly the 1st defendant is entitled to a fair judicial and administrative action.

4. Both parties with leave have buttressed their arguments through written submissions dated 16. 10. 2021 and 12. 10. 2021 respectively.

5. On the part sf the plaintiff, it is submitted that Section 70 (b)of the Land Registration Act requires an inhibition order to have timelines and in the instant case the inhibition was specific to conclusion of the suit.

6. Further it is submitted application for stay was dismissed on 9. 7.2021 by the Court of Appeal hence this court should vacate the inhibition orders.

7. On the other hand, the 1st defendant submits an appeal is pending before a Court of Appeal hence this court is fanctus officio in so far as current application is concerned.

8. Secondly it is submitted the applicant ought to move the Court of Appeal under Rule 45 of the Court of Appeal Rulesfor removal of the inhibition.

9. Third it is submitted this court should preserve the orders otherwise vacating the same would affect the substratum of the appeal hence the respondents’ rights to appeal and a fair hearing contrary to Articles 47 and 50 of the Constitution.

10. The respondent relies on National Media Group Ltd –vs- Attorney General 1 E.A [2007] 261.

11. It is not in dispute that an inhibition was placed on 19. 7.2005 out of an order granted by Hon. Justice D.A. Onyancha now retired on 14. 7.2005.  The order was explicit that it would pend till the determination of the suit.

12. Under Section 70 (a) & (b)of the Land Registration Act, the events contemplated occurred on 3. 6.2019 hence the reason the 1st defendant now an appellant moved vide a notice of motion dated 20. 12. 2019 under Rule 5 (2) (b)of the Court of Appeal Rulesto pray for an inhibition order pending hearing and determination of the appeal.

13. The 1st defendant knew the orders of inhibition herein were already spent.  It would therefore amount to double speak for the said party to submit the said orders were in perpetuity and have force until the appeal is heard and determined.

14. Similarly the 1st defendant did not seek for the extension of the inhibition orders if at all he is of the considered view they would prejudice his appeal if vacated.

15. Submissions however forceful without a formal pray cannot translate into a request and in this case the 1st defendant had the onus to justify why the inhibition orders should subsist beyond this suit.

16. Again, it is clear the 1st defendant was unsuccessful in seeking the orders of inhibition at the Court of Appeal yet he submits that since the matter is now before that court, this court is functus officioin so far as determining the issue of inhibition subsisting.  Moreover whether the inhibition was lawfully or unlawfully granted and if it should subsist does not form part of the 1st respondent’s grounds of appeal.

17. In my view the first port of call is the court which issued the inhibition orders and not the one in which the appeal is preferred.

18. Given the foregoing, I find no good reasons why the inhibition orders should subsist beyond what the order itself and by extension the law under which it was registered state.

19. Court orders are ordinarily not issued in vain and or to result into absurd effects.  The 1st defendant was enabled by the court to enjoy the preservation of the suit property. On the same vein the respondent is now the successful litigant and hence entitled to enjoy the fruits of his judgment.

20. In the circumstances I find the application with merits.  The same is allowed in terms of prayers 1, 2 and 3.

Orders accordingly.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 20TH  DAY OF DECEMBER, 2021

In presence of:

Ondari for 1st respondent/defendant

Mwangi Muthomi for plaintiff/applicant

Miss Mbubuya for Official receiver

Court Assistant – Kananu

HON. C.K. NZILI

ELC JUDGE