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ELCStruck OutOriginating Summons dated 10th November 2015 (Plot No.4612 Section II Mainland North)· [2017] KEELC 2194 (KLR)

Janet Mwendwa v Nancy Mavutha Musyaka [2017] KEELC 2194 (KLR)

Environment and Land Court of Kenya
25 July 2017
CYC. Yano
1,639 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed you don't need a second vesting order when the first one already registered the property in your name.

What this practically means

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Executive summary

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The Applicant, Janet Mwendwa, brought an Originating Summons dated 10th November 2015 seeking a Vesting Order in her favour over Plot No.4612 Section II Mainland North, together with orders authorizing the Deputy Registrar to execute transfer documents and the Registrar of Titles to register the property in her name. She had purchased the property at a public auction on 18th February 2015 in execution of a decree in Mombasa SRMCC No.2225 of 2013, was declared highest bidder, paid the full purchase price of Kshs.2,000,000, and obtained a Certificate of Sale and Vesting Order from the Magistrate's Court which was registered on 7th May 2015, placing the property in her name. The Respondent, the previous registered owner, opposed the summons through a preliminary objection and replying affidavit, alleging fraud, lack of service, want of pecuniary jurisdiction in the Magistrate's Court, and that the suit property was her matrimonial home worth over Kshs.8,000,000 sold for Kshs.2,000,000. Justice C. Yano found it undisputed that the Applicant acquired the property at the court-ordered auction and that the Magistrate's Court's Vesting Order was issued, fully implemented and never set aside. The court held that issuing a second Vesting Order would be superfluous and in vain, that challenges to the subordinate court's process belonged in review or appeal and could not be entertained in this summons, and that the application was misconceived, unnecessary and an abuse of the court process. The application was struck out, with each party bearing their own costs.

Key legal issues

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01

Whether a second Vesting Order should issue where the first is subsisting

Holding

No; it would be superfluous and the application was struck out as an abuse of process

Reasoning

The court found it undisputed that the Applicant purchased the property at a court-supervised public auction, obtained a Certificate of Sale and Vesting Order from the Magistrate's Court, and that the Vesting Order was registered and fully implemented, placing the property in the Applicant's name. That Vesting Order had not been set aside. Issuing a second Vesting Order over the same subject matter would serve no purpose, so the summons was misconceived and unnecessary.

p. 3
02

Whether challenges to the subordinate court's jurisdiction and the propriety of the auction could be determined in this summons

Holding

No; those are matters for review or appeal, not for this originating summons

Reasoning

The Respondent argued the Magistrate's Court lacked pecuniary jurisdiction, that service was improper, and that the sale was fraudulent. The court held that even if those contentions were true, they could not be entertained in an originating summons seeking a fresh Vesting Order; the proper channels were review or appeal. The judicial review application challenging the same proceedings had already been dismissed with no illegality found.

p. 3

Legal principles established

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  • Courts do not issue orders in vain; a court will not grant relief where the relief sought has already been effected under a subsisting order
  • A first-instance court hearing an originating summons is not an appellate forum and cannot review the legality of the subordinate court's Vesting Order in those proceedings

Court orders

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  1. 1.The Orders sought in the application dated 10th November 2015 are declined
  2. 2.The application dated 10th November 2015 is struck out
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 37 Rules 16, 17, 18 and 19

Cases cited (4)

  • SAMUEL NGUGI KIMANI
    (2013) eKLR
  • In Re THE MATTER OF MILAND CO. LTD
    (2010) eKLR
  • JAMES KANYIITA NDERITU AND ANOTHER VERSUS MARIOS PHILOTA GHIKAS AND ANOTHER
    (2013) eKLR
  • MOMBASA TANZANIA SINGH CONSTRUCTION AND ANOTHER
    (2013) eKLR
Jurisdiction invoked
Not expressly invoked; the matter was commenced by Originating Summons before the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Janet Mwendwa v Nancy Mavutha Musyaka [2017] KEELC 2194 (KLR)", Case Analysis (2017). Originating Summons dated 10th November 2015 (Plot No.4612 Section II Mainland North). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2194/eng@2017-07-25

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