Mary Kirwana Kitaka v Commissioner Land Registration (Misc. Cause No. 101 of 2022)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Application dismissed. The court held that removal of a mortgage registered after the proprietor's death cannot be granted through a miscellaneous cause. Such relief requires evidence to be subjected to close scrutiny through a civil suit. The applicant had previously filed Civil Suit No. 734 of 2022 seeking the same relief but failed to prosecute it.

Outcome

Application dismissed for use of wrong procedure

Facts

Francis Xavier Kitaka died on 12 September 2020. He was the registered proprietor of land comprised in Block 244 Plot 3396. On 29 March 2022, after his death, the Commissioner Land Registration registered a mortgage on the title in favour of Rapid Advisory Services Limited. No administrator or executor had been appointed to manage the deceased's estate. The applicant, Mary Kirwana Kitaka, wrote to the Respondent on 5 August 2022 seeking to vacate the mortgage. The Respondent declined by letter dated 9 August 2022, stating that the property was mortgaged by the deceased before he died. The applicant had previously filed Civil Suit No. 734 of 2022 seeking cancellation of the mortgage, but that suit was dismissed for want of prosecution.

Issues

1. Whether the mortgage on land comprised in Block 244 Plot 3396 should be removed.

Orders

• Application dismissed.
• No order as to costs.

Rules and key headnotes

Legislation cited (8)

• Civil Procedure Act s.98
• Succession Act s.268
• Registration of Titles Act s.182
• Registration of Titles Act s.166(1)
• Civil Procedure Rules O.52 r.1
• Civil Procedure Rules O.52 r.2
• Mortgage Act s.2
• Mortgage Act s.7(1)

The original judgment as reported. Read the original PDF before relying on any passage.