Joseph Kathurima M'ibiri v Paragon Property Consultants Ltd [2017] KEHC 5243 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

MISC CIVIL APPL. NO. 56 OF 2016

JOSEPH KATHURIMA M'IBIRI.................................APPLICANT

VERSUS

PARAGON PROPERTY CONSULTANTS LTD.....RESPONDENT

R U L I N G

1. The Notice of Motion dated 7th June, 2016 seeks the following orders:-

1. That this Honourable Court be pleased to remove and or lift the restriction placed against land parcel No. Ntima/Igoki/7353 on 11. 12. 2014.

2. That the respondent  do bear the costs of this application.

2. The application is based on the grounds that:-

a. The subject matter herein belongs to the applicant absolutely.

b. The Respondent has no claim against  the applicant and the said restriction had been in force since 11th of December, 2012 that is over 3 years and no action taken.

c. The said restriction is greatly  prejudicing and affecting the respondent's proprietary right.

3. The Application is supported by the Affidavit of  JOSEPH KATHURIMA M'IBIRI  sworn on   7th June, 2016  had has the following  grounds:-

1. The he is the applicant herein thus competent to make and swear this affidavit.

2. That he is the registered sole proprietor of all that parcel of land known as NTIMA/IGOKI/7353 measuring  0. 15 hectares.

3. The he recently learnt that his land herein has been registered and he consequently obtained a search from the land office and found that the respondent herein had caused a restriction to be placed against applicant's  land on 11:12:2012  through a letter to the Land Registrar, annexed  is a copy of the search marked “JKM1”.

4. That the respondents have no basis to challenge his proprietary right to this land and cannot therefore under any circumstance cause his land to be restricted.

5. That the respondent have no legal basis to cause restriction to be placed against  applicant's land  and the same is illegal and unwarranted.

6. That the intention of restricting a land  by  any party is a temporary  relief so that the affected party can pursue the matter  to conclusion  but up to date no such action has been taken by the respondent and as a result of the actions of the respondent he is suffering great loss and damage.

7. That  he seeks that this Honourable Court do lift or remove the restriction placed against his land , since it has been there for more that 3 years and no action has been taken.

4. The application has been served upon the Respondent as well as upon the  District Land Registrar  Meru Central and there is no response from either of the two.

5. Annexture JKM1, a Search Certificate shows  that the  Restriction was entered on 11: 12: 12 and that the basis  of the Restriction was a  letter from Respondent  to the Commissioner of lands.  The proprietorship section shows that applicant is the owner of the land parcel No. NTIMA/IGOKI/7353.

6. There is no evidence to show that the Respondent and or the land Registrar have any  justification to have the restriction   in place.

7.  S. 78 (2) of the land  Registration Act of 2012 stipulates that

“ Upon the application of a proprietor affected by a  restriction,  and upon  notice to the Registrar , the Court may  order a restriction to be  removed,  varied, or grant  other orders as it deems fit”.

8. I therefore, find that the application of 20:06:16 has merits.  The restriction placed on Land Parcel No. NTIMA/IGOKI/ 7353 is to be lifted forthwith.

9. Costs in the cause.

DELIVERED IN OPEN COURT AT MERU THIS 10TH DAY OF MAY, 2017 IN THE PRESENCE OF :-

CA: Janet

Muthamia h/b for Ondari for Applicant Present

HON. L.N. MBUGUA

JUDGE