Mageta Enterprises Ltd v Tilak Company Limited [2014] KEHC 58 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL SUIT  NO. 156 OF 2008

MAGETA ENTERPRISES LTD..........................APPLICANT

VERSUS

TILAK COMPANY LIMITED..........................RESPONDENT

RULING

The  applicant, Mageta  Enterprises Ltd, brought  the notice of motion dated 25th February, 2014 praying that the caution  placed  by the  director  of  the  respondent, Zaina Mukami Chelang'a, over  the  parcel of land known as Nakuru/Municipality Block 11/195 (the suit property) be forthwith removed.

The application is supported   by the affidavit of the director of the applicant, Kenneth Maweu Kasinga, and is premised on  the  grounds that by  a decree of  this court issued on 25th July,  2011 the applicant was declared  to have been in  adverse possession of the suit property and to  be  entitled to  registration as the  proprietor of the suit property and that through an order of  this court issued on 20th January, 2014 the  Deputy Registrar of this court was   ordered to  execute all  the  documents  necessary  to effect  the transfer. The applicant contends that despite all the   necessary transfer documents having been prepared the transfer could not be effected as it emerged that the director of the respondent (Zaina Mukami Chelang'a) had placed a caution over  the  suit property way  back in 2000. Contending that the  said director of the  respondent does not  hold  any superior interest over  the  suit property and that unless the  caution is  lifted   the transfer  ordered  by the  court cannot be  effected, the  applicant has urged the court  to   allow   the application  in   order  to   enable  the execution of the  said decree of the  court.

When the application came up for  hearing on  6th  May, 2014  the  application was  declined for   want  of  proper service.

Following an order for fresh service, the applicant served the respondent by way of substituted   service (advertisement). That fact is borne out by the affidavit of the process server, Nelson Kisolei, sworn on 28th May, 2014.  In   that  affidavit the   process server has  deposed that  on 22th  May, 2014  he   received the  application herein  from    the applicant's  advocates,  Kiplenge and Kurgat Advocates, with  instruction to effect  service of the same to  the  respondent by way  of substituted service.

Upon  paying for  the  substituted  service, the  matter was advertised on  23rd May,  2014 as can   be  attested by  a copy  of the  newspaper extract annexed to  the  processor's affidavit.

Despite having been served by way of substituted service, the respondent did not file any response. That being the case, when the matter came up for hearing on 28th May, 2014 counsel for the applicant, urged the court to allow the application as it was unopposed.

Upon reading and  considering the  application and  the affidavit  evidence  adduced in  support thereof, particularly the  decree issued on 25th July, 2011 and the court  order  issued  on 17th January, 2014  in respect thereof, and being satisfied that the  respondent was  duly served with  the  application herein, I allow  the  application as prayed.

Dated, Signed and Delivered at Nakuru this 4th Day of July 2014

H.A. OMONDI

JUDGE