Cecilia Gachire Mburu & Mary Wairimu v Felista Wamuhu & John Marichu [2010] KEHC 2437 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI Civil Case 55 of 1983

1. CECILIA GACHIRE MBURU..………………………. 1ST PLAINTIFF

2. MARY WAIRIMU...……………………. 2NDPLAINTIFF

VERSUS

1. FELISTA WAMUHU..……………………. 1ST DEFENDANT

2. JOHN MARICHU..……………………. 2ND DEFENDANT

RULING

The 1st Plaintiff herein, Cecilia Gachire Mburu took out a motion dated 26th January 2009 pursuant to section 3(a) of the Civil Procedure Act in which he applied to this court to issue an order directing the Principal Land Registrar, Muranga to remove the caution registered by Felista Wamuhu Mwarano against title No. Loc 7 /Ichagaki/795. She swore an affidavit in support of the motion.Felista Wamuhu filed grounds of opposition to oppose the application.

The history leading to this motion appear to be short and straight forward.Cecilia Gachire Mburu and Mary Wairimu Mburu filed the plaint dated 8th February 1983 in which they sought for judgment in the following terms against Felista Wamuhu and John Marichu:-

1. The 2nd defendant that is John Marichu holds the parcel of land known as Loc 7/Ichagaki/795 in trust for himself and the other plaintiffs.

2. The 2nd defendant that is John Marichu be ordered to transfer equal share for the aforesaid land to the plaintiffs.

3. Costs of the suit.

The defendant filed a defence to deny the plaintiff’s claim.On 9th September 1983 this court referred the dispute to be arbitrated by a panel of elders.The panel of elders heard the suit and its decision was adopted as the order of this court on 24th October 1994. The effect of the panel elders’ decision is that the defendants were ordered to transfer 1. 5 acres to be excised from aforesaid parcel of land to the plaintiff.The plaintiffs are now before this court complaining that they are unable to effect the terms of the judgment because there is a caution registered against the title hence they are beseeching this court to direct the Land Registrar to remove it.It is the submission of the defendants that the motion was filed out of time contrary to section 4(4) of the Limitation of Actions Act.

I have considered the grounds set out on the face of the motion and the facts deponed on the supporting affidavit.I have also considered the grounds of opposition.Basically it is not denied that the caution is registered against title Loc 7/Ichagaki/795. Therefore, it is true that the plaintiffs have been unable to actualize the decision of this court.It is apparent that the decision of this court to adopt the panel of elders’ decision was made on 24th October 1994. The matter before me is an application seeking to remove a caution registered against the title in dispute.Under section 133(1) of the Registered Land Act, this court has unfettered discretion to issue an order to remove a caution. I have been urged to find that the motion is time barred under section 4(4) of the Limitation of Actions Act.I do not think that section is applicable to this motion.That subsection clearly makes an action based on a judgment which is more than 12 years untenable.Consequently I see no merit in the objection.I allow the motion as prayed with costs.

Dated and delivered at Nyeri this 23rd day of April 2010

J.K. SERGON

JUDGE