Simon Njoroge Thuo v Joseph Mwangi Waweru [2017] KEELC 3064 (KLR)

Order 40 rule 1 contemplates property in dispute 'in a suit'. Under section 2 of the Civil Procedure Act a suit means civil proceedings commenced in a manner prescribed - by plaint, Originating Summons or petition. The applicant used none of these; he filed only a Notice of Motion titled 'Miscellaneous Application', with no plaint, no fees for a plaint and no summons to enter appearance. Without a suit, the interlocutory application has no foundation.

While courts must administer justice without undue regard to procedural technicalities and facilitate just, expeditious resolution under section 1A of the Civil Procedure Act, there must still be a suit before the court for these duties to be performed. The Court of Appeal in Kakuta Maimai Hamisi and Mumo Matemu has clarified that compliance with rules of procedure is not antithetical to Article 159; procedure is a handmaiden of just determination of cases.

The applicant sought an order that the Chief Land Registrar remove the caution registered by the respondent. Citing Joseph Kibowen Chemjor v William C. Kisera, the court held that an action for removal of a caution requires a plaint in which the plaintiff proves on a balance of probabilities why the defendant has no right to place the caution and why it should be removed. Since the proceedings themselves are incompetent, this prayer cannot survive.