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ELCStruck OutApplication dated 29.7.2015 (High Court Succession Cause No. 76 of 2012 related)· [2016] KEELC 676 (KLR)

Getrude Chao Waita & another v Agnes Wamaitha Kibuchi & another [2016] KEELC 676 (KLR)

High Court of Kenya
21 July 2016
AOA. Omollo
347 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court struck out a land application because the applicants quietly sought the same protection orders twice without telling the court about the first.

What this practically means

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Executive summary

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The applicants filed an application dated 29.7.2015 under sections 28(a) and 68 of the Land Registration Act seeking an inhibition order to bar the Respondents from undertaking any dealings on plot No 627/VI/MN pending determination of the suit. The application was supported by an affidavit of Stephen Mbaki Waita and opposed by the 1st Respondent, Agnes W. Kibuchi, who in her replying affidavit stated that the applicants had already obtained interim orders of inhibition in High Court Succession Cause No 76 of 2012 but had failed to list that application for hearing. The court called for the succession cause file and confirmed that on 23.9.2014 Odero J. had granted temporary inhibition orders exparte on an application dated 20.9.2014, which orders were extracted but never confirmed through a hearing on merits. Instead of listing that application, the applicants filed the present fresh application under certificate of urgency seeking similar orders without disclosing the existence of the earlier orders, apparently intending to be heard exparte again. Omollo J. held that this conduct was a clear abuse of the court process, wasting the court's time and causing the respondents to incur costs in defending the same application twice. Declining to consider the application on its merits, the court struck it out with costs to the Respondents. The ruling was delivered at Mombasa on 21 July 2016.

Key legal issues

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01

Abuse of court process by renewing a similar exparte application without disclosure

Holding

The application is struck out without consideration of its merits for abuse of court process

Reasoning

The court called for the prior file and found the applicants had obtained temporary inhibition orders exparte from Odero J. on 23.9.2014 but failed to have the application heard on merits, instead filing a fresh application without disclosing the existence of the earlier orders. This wasted court time and imposed duplicated costs on the respondents, rendering the fresh application an abuse of process that could not be tolerated.

p. 2

Legal principles established

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  • Filing a fresh application for the same orders already obtained exparte, without disclosing the existence of prior orders, is an abuse of court process warranting striking out

Court orders

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  1. 1.The application dated 29.7.2015 is struck out for being an abuse of the court process
  2. 2.Costs awarded to the Respondents

Authorities

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Legislation

  • Land Registration ActSection 28(a)
  • Land Registration ActSection 68
Jurisdiction invoked
Sections 28(a) and 68 of the Land Registration Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Getrude Chao Waita & another v Agnes Wamaitha Kibuchi & another [2016] KEELC 676 (KLR)", Case Analysis (2016). Application dated 29.7.2015 (High Court Succession Cause No. 76 of 2012 related). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/676/eng@2016-07-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.