Elijah Githinji Charara v County Land Registrar Laikipia,Attorney General & Zakayo Kamau Theuri [2015] KEHC 8097 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CONSTITUTIONAL AND JUDICIAL REVIEW  DIVISION

PETITION  NO. 46 OF2014

IN THE ARTICLES 19,22,23,40,47,50 & 64  OF THE  CONSTITUTION OF  KENYA 2010

AND

IN THE MAITER OF CONTRAVENTION OF RIGHT TO  PROPERTY  & PURPORTED REVOCATION  OF  TITLE  NO. LAIKIPIA/KINAMBA/MWENJE BLOCK 1/311 VIDE  GAZETI'E NOTICE  NO. 13287 OF 27TH  SEPTEMBER  2013

BETWEEN

ELIJAH  GITHINJI  CHARARA................................................PETITIONER

VERSUS

COUNTY LAND REGISTRAR, LAIKIPIA...................1ST  RESPONDENT

HON. ATTORNEY GENERAL.....................................2ND  RESPONDENT

ZAKAYO KAMAU THEURI........................................INTERESTED PARTY

RULING

1. The  notice of motion dated 19th  June  2014 seeks that conservatory orders do  issue restraining the  interested  party (Zakayo Kamau Theuri) from selling, transferring,  charging, leasing, disposing or in any other adverse manner dealing with title  no. Laikipia/Kinamba/Mwenje Block 1/1311. The  reasons being that  the petitioner's (Elijah Githinji Charara) registration as the proprietor  of  that  parcel was  revoked and/ or  cancelled  without  following the due process of  the law. The petitioner has  moved to  challenge the cancellation and  unless  conservatory orders are  issued,  the  interested party is bound to adversely deal with the parcel and defeat any judgment that might be  passed  against him.

2.  The respondents counsel Miss Khatambi had no  objection to the prayers as they  did  not affect  her client. The interested party did not file  any  response  to the application.  In the supporting  affidavit, the  petitioner deposes  that  he acquired the suit  property for  valuable  consideration  from the  previous  proprietor one James M.  Jepheth  and  was duly issued with a  title  deed on  l0th March 2011.  He has been in possession of that parcel since then. However  on 13th May  2013 when he conducted a  routine official search  of the property, he  learnt  that  the  interested party had registered a caution  against  the title, on 20th April  2012.  On 3rd June 2013, he received  a  demand letter from the interested party's advocate, requiring him  to  surrenderer his title  deed to the  land office for  cancellation on  claims that the interested party  had  acquired the  land  through purchase from the  original allotee. on 15th July 2013, he filed  an application against the  interested  party under Njahururu PMCC Misc. Appl. no. 15 of 2013 seeking an order for  removal of the caution. The  interested  party also  filed his pleadings in the matter, but  while these  proceedings were pending, the petitioner  sent  a  letter  through his advocate to the effect  that the title  had been  cancelled by the  County Land Registrar, Laikipia vide Kenya Gazette notice no.  13287 of 27th September 2013.  An abstract of  title obtained  from Laikipia land  registry  confirmed  the cancellation.

3. It  is  the petitioners lament  that prior to  this  cancellation,  he  had not  received  any  notice  or communication  from  the County Land Registrar Laikipia that  his title was  in  the process of being cancelled, nor  was he accorded any hearing before the  decision was made.  He contends tha-  t the countv Land Registrar (1st respondent) was  and  is  still under a constitu tiona!obligation to  give reason  for  his  decision, especially because  the  petitioner believes  he  had no powers under the law  to cancel his  title. Further that the action of the 1st respondent  amounts  to  expropriation  of  his  present property without  compensation and  without due process.

4. I have considered the depositions and annextures  stated by the petitioner.  The  fact  that his  title  has been cancelled means that he  cannot  now control any adverse activities affecting  the property. He  is aggrieved by that decision and has challenged it in court, which means that if the property is not  preserved, the  other party in whose favour the title now exists can  deal with the same in any manner he desires including sub-dividing, selling, leasing or even disposing of the property  entirely. This will adversely affect and be prejudicial to the  applicant, in the event that the suit he has filed  herein succeeds, I find that  the  petitioner has sufficiently and adequately demonstrated why it is necessary that pending hearing and determination  of this petition, that suit property be  preserved by way of conservatory orders.  Subsequently the application  is merited and  I order that conservatory orders do  issue  restraining the interested  party from selling, transferring, charging,  leasing, disposing  or in any  other adverse manner dealing with  title no. Laikipia/Kinamba/Mwenje Block  1/1311 until this is petition heard and determined.

Written and DATED this 16th day of December 2014 at BUNGOMA.

H.A. OMONDI

JUDGE.

Delivered and dated this 20th day of January, 2015 at Nakuru

JANET MULWA

JUDGE.