Republic v Attorney General, District Land Dispute Tribunal Embu West, Chief Magistrate Embu, John Nthiga Zacharia Ex parte Daniel Njagi [2019] KEELC 4931 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA AT EMBU

E.L.C. JUDICIAL REVIEW 39 OF 2014

IN THE MATTER OF THE LAW REFORM ACT, CHAPTER 26 OF THE LAWS OF KENYA

IN THE MATTER OF DISTRICT LAND DISPUTE TRIBUNAL

IN THE MATTER OF AN APPLICATION FOR ORDERS OF CERTIORARI AND PROHIBITION

REPUBLIC................................................................................................APPLICANT

VERSUS

THE HON. THE ATTORNEY GENERAL................................1ST RESPONDENT

DISTRICT LAND DISPUTE TRIBUNAL EMBU WEST......2ND RESPONDENT

CHIEF MAGISTRATE EMBU..................................................3RD RESPONDENT

AND

JOHN NTHIGA ZACHARIA................................................INTERESTED PARTY

DANIEL NJAGI (As Legal Representative of

Paul Njagi Kapingazi (Deceased)........................................EX-PARTE APPLICANT

RULING

1.  By a notice of motion dated 7th August 2018 brought under section 3 and 3A of the Civil Procedure Actand all other enabling provisions of the law, the interested party, John Nthiga Zacharia, sought an order for the Land Registrar to lift the caution or restriction registered against Title No. Gaturi/Nembure/307 (hereinafter the suit property).

2.  The said application was based upon the grounds enumerated on the face of the motion.  It was contended that the interested party was the registered owner of the suit property and that he was the successful party in the litigation which was concluded by the judgement of this court dated 26th July 2018.  He was, however, unable to deal with the suit property as he wished due to the existing encumbrance.

3.  The said application was supported by an affidavit sworn by the interested party on 7th August 2018 in which he reiterated the grounds set out in the motion.  He annexed to the supporting affidavit copies of the certificate of official search for the suit property, the decree dated 26th July 2018 and a copy of the death certificate of the original applicant in the judicial review application.

4.  The said application was opposed by the ex-parte Applicant, Daniel Njeru Njagi, who filed a replying affidavit sworn on 5th October 2018.  The main grounds of opposition were that the ex-parte Applicant had filed a notice of appeal against the decree dated 26th July 2018; that if evicted he had nowhere else to go; and that he needed a grace period of at least one year to purchase alternative land.

5.  When the said application was listed for hearing on 8th October 2018, the interested party prosecuted the same orally whereas Mr. P.N. Mugo opposed the same on the basis of the replying affidavit on record.

6.  The court has considered the interested party’s said application and the ex-parte applicant’s opposition thereto.  The court has also considered the respective oral submissions of the parties.

7.  The court has noted that the application for judicial review was dismissed on 26th July 2018 by this court.  Although the ex-parte Applicant appears to have filed a notice of appeal against the said judgement and decree, no steps have been taken towards prosecution of the said appeal or even towards seeking some interim orders from the Court of Appeal.  As things stand now, there is no legitimate reason to maintain the existing caution against the suit property.

8.  The mere fact that the ex-parte Applicant may not have alternative land cannot be a good reason for maintaining the caution against the suit property. He knew all along of the pending litigation and of the possibility of either succeeding or losing in the litigation.  In any event, there is no guarantee that he would succeed on appeal.

9.  The upshot of the foregoing is that the court finds merit in the interested party’s notice of motion dated 7th August 2018 and the same is hereby allowed in terms of order No. 1 thereof.  The ex-parte Applicant shall bear the costs of the application.

10. It is so decided.

RULING DATED, SIGNEDand DELIVERED in open court at EMBU this31STday ofJANUARY, 2019.

In the presence of the Ex-parte Applicant and the Interested Party and in the absence of the Respondents.

Court clerk Mr Muinde

Y.M. ANGIMA

JUDGE

31. 01. 19