1. The 2nd respondent filed the notice of motion dated 1st April 2025 seeking an order directing the Land Registrar, Nairobi Registry, to remove the caution registered on property known as Nairobi/Block 160/1/24 (the suit property).
2. The application is made under section 73(1) of the Land Registration Act. It is supported by the affidavit sworn by the 2nd respondent’s senior recoveries officer, Victor Keitany, on 1st April 2025.
Background
3. In brief, the background to the application is that the 1st respondent is the registered owner of the suit property. He offered the suit property as security for a loan facility advanced by the 2nd respondent. On 9th September 2010, a charge was registered over the suit property to secure repayment of Kshs. 5,455,000/-.
4. The 1st respondent defaulted in repayment of the loan, prompting the 2nd respondent to commence the process of exercising its statutory power of sale.
5. The petitioner caused a caution to be registered on the suit property on 31st January 2018.
6. The petitioner also filed the instant petition, seeking, among others, a permanent injunction to stop the 2nd respondent from selling the property.
7. On 17th January, 2020, the court dismissed the petition for lack of merit, with no orders as to costs.
8. The petitioner filed Civil Application No. E021 of 2020, FSM v JMM and Bank of Africa Limited in the Court of Appeal seeking injunctive orders. The application was dismissed through a ruling delivered on 29th January 2021.
9. Thereafter, the 2nd respondent sold the suit property to Dancan Anthony Okello Ndeda on 15th May 2022. It was then applied to the Land Registrar to remove the caution. However, its application was rejected due to lack of a court order, prompting the instant application.
Grounds
10. The application is premised on the following grounds:-
(1) The registration of the transfer will not be possible unless the court issues the order sought.
(2) The 2nd respondent stands to be greatly prejudiced as it will not be able to recover the entire outstanding loan amount.
(3) The 2nd respondent will be at risk of being sued by the purchaser.
Mention for Directions
11. On 12th May 2025, Mr. Sikuku, for the 2nd respondent, stated that the application was served. There was no appearance for the petitioner.
12. As I was preparing the ruling, I did not sight an affidavit of service in respect of the application either in the physical file or on the Judiciary’s Case Tracking System (CTS). There was only an affidavit of service in respect of the ruling notice dated 16th May 2025.
13. The court cannot confirm that the petitioner was served and given an opportunity to respond.
14. The failure to serve the application offends the principle of fairness and the rules of natural justice, which require that a person should not be condemned unheard.
Directions
15. In the interests of justice, I direct the 2nd respondent to serve the application upon the petitioner and thereafter to take out a mention for directions and confirmation of service.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 24th day of July, 2025
-----------------
F. Gikonyo M
Judge
In the presence of: -
1. Sikuku for Appellant
2. No appearance for respondent
3. CA- Kinyua
2. The application is made under section 73(1) of the Land Registration Act. It is supported by the affidavit sworn by the 2nd respondent’s senior recoveries officer, Victor Keitany, on 1st April 2025.
Background
3. In brief, the background to the application is that the 1st respondent is the registered owner of the suit property. He offered the suit property as security for a loan facility advanced by the 2nd respondent. On 9th September 2010, a charge was registered over the suit property to secure repayment of Kshs. 5,455,000/-.
4. The 1st respondent defaulted in repayment of the loan, prompting the 2nd respondent to commence the process of exercising its statutory power of sale.
5. The petitioner caused a caution to be registered on the suit property on 31st January 2018.
6. The petitioner also filed the instant petition, seeking, among others, a permanent injunction to stop the 2nd respondent from selling the property.
7. On 17th January, 2020, the court dismissed the petition for lack of merit, with no orders as to costs.
8. The petitioner filed Civil Application No. E021 of 2020, FSM v JMM and Bank of Africa Limited in the Court of Appeal seeking injunctive orders. The application was dismissed through a ruling delivered on 29th January 2021.
9. Thereafter, the 2nd respondent sold the suit property to Dancan Anthony Okello Ndeda on 15th May 2022. It was then applied to the Land Registrar to remove the caution. However, its application was rejected due to lack of a court order, prompting the instant application.
Grounds
10. The application is premised on the following grounds:-
(1) The registration of the transfer will not be possible unless the court issues the order sought.
(2) The 2nd respondent stands to be greatly prejudiced as it will not be able to recover the entire outstanding loan amount.
(3) The 2nd respondent will be at risk of being sued by the purchaser.
Mention for Directions
11. On 12th May 2025, Mr. Sikuku, for the 2nd respondent, stated that the application was served. There was no appearance for the petitioner.
12. As I was preparing the ruling, I did not sight an affidavit of service in respect of the application either in the physical file or on the Judiciary’s Case Tracking System (CTS). There was only an affidavit of service in respect of the ruling notice dated 16th May 2025.
13. The court cannot confirm that the petitioner was served and given an opportunity to respond.
14. The failure to serve the application offends the principle of fairness and the rules of natural justice, which require that a person should not be condemned unheard.
Directions
15. In the interests of justice, I direct the 2nd respondent to serve the application upon the petitioner and thereafter to take out a mention for directions and confirmation of service.
Dated, signed and delivered at Nairobi through Microsoft Teams online application this 24th day of July, 2025
-----------------
F. Gikonyo M
Judge
In the presence of: -
1. Sikuku for Appellant
2. No appearance for respondent
3. CA- Kinyua