Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedELC Appeal No. 8 of 2017· [2018] KEELC 3717 (KLR)

Paul Ngunjiri Wahome v Nancy Wanjiku Ngunjiri [2018] KEELC 3717 (KLR)

Environment and Land Court
18 April 2018
MOM.C. Oundo
2,649 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out a landowner's bid to remove cautions from his land because he filed a Notice of Motion instead of a plaint.

What this practically means

#

Executive summary

#
This was a first appeal to the Environment and Land Court at Nyahururu against the ruling of A.B. Mongare SRM delivered on 25 October 2012 in Nyahururu PMCC Misc. Application No. 38 of 2011, which dismissed the appellant's Notice of Motion dated 21 October 2011 seeking removal of cautions registered by the respondent on 26 July 2005 over L.R Nyandarua/Silibwet 23486 and 23487. The parties are a married couple with seven children; the appellant is the registered proprietor of the suit parcels, which he said were gifted by his father, while the respondent, his wife, resided on the land with the children and registered the cautions to protect her spousal interest after the appellant allegedly attempted to sell the land. By consent the appeal was disposed of by written submissions. The appellant argued the trial magistrate considered extraneous matters and erred in finding the properties matrimonial property; the respondent countered that the appellant had approached the court through the wrong forum, a miscellaneous application being incompetent for removal of a caution, and relied on her overriding spousal rights. M.C. Oundo J framed three issues centring on the propriety of commencing the action by miscellaneous application. Holding that Section 133 of the repealed Registered Land Act was excluded from originating summons procedure under Order 37 Rule 8, the court found the only proper mode of commencing the suit was by plaint, and that the Notice of Motion was fatally defective. The appeal was dismissed, the application struck out, the trial court's orders set aside, and the respondent awarded costs of both the appeal and the court below.

Key legal issues

#
01

Whether a suit for removal of a caution can be instituted by way of miscellaneous application (Notice of Motion).

Holding

No. Under Order 3 Rule 1 of the Civil Procedure Rules every suit must be instituted by plaint or such other manner as prescribed; Order 37 Rule 8 expressly excludes applications under Section 133 of the Registered Land Act from originating summons, so the only other mode was by plaint. A Notice of Motion was incompetent.

Reasoning

The court traced the procedure from Order 3 Rule 1 of the Civil Procedure Rules, which requires suits to be instituted by plaint or in another prescribed manner. Order 37 governs originating summonses but Rule 8 excludes applications under Sections 120, 128, 133, 138, 143 and 150 of the RLA. Section 133, the provision for removal of cautions, was therefore excluded from originating summons procedure, leaving a plaint as the sole proper mode. Commencement by Notice of Motion went beyond a mere technicality and rendered the application fatally defective.

p. 4
02

The standard of review on a first appeal.

Holding

The court, applying Selle v Associated Motor Boat Company Ltd, must revisit the evidence afresh, analyse and evaluate it, and reach its own conclusion, subject to the usual caution about the trial court's advantage in observing witness demeanor.

Reasoning

Relying on the East African Court of Appeal decision in Selle v Associated Motor Boat Company Ltd [1968] EA 123, the court restated the classic first-appeal duty: the appellate court re-evaluates the evidence and draws its own conclusions, while remembering that the trial court saw and heard the witnesses, an advantage lost on appeal because the hearing took place before the Magistrate.

p. 3
03

The effect of a defective mode of commencing suit notwithstanding Article 159(2)(d) of the Constitution.

Holding

Commencement by a document that cannot be regarded as a pleading goes beyond a mere technicality and cannot be saved by the override-the-technicalities principle; the defective application had to be struck out.

Reasoning

Adopting Munyao Sila J's observations in Joseph Kibowen Chemjor v William C. Kisera, the court held that although Article 159(2)(d) requires justice to be administered without undue regard to technicalities, instituting a suit in a manner in which the document cannot be held to be a pleading goes beyond a mere technicality. Striking out at an early stage causes minimal cost and avoids prejudice, and is the lesser of two evils.

p. 4

Legal principles established

#
  • An application for removal of a caution under Section 133 of the repealed Registered Land Act could not be made by Notice of Motion; the only permissible modes were by plaint (or, for specified sections, originating summons under Order 37 Rule 8), and a suit commenced otherwise is fatally defective and incompetent.
  • On a first appeal, the court is enjoined to revisit the evidence before the trial court afresh, analyse and evaluate it, and reach its own independent conclusion, while making allowance for the trial court's advantage of observing witnesses.

Court orders

#
  1. 1.The appeal is dismissed.
  2. 2.The Notice of Motion application dated 21st October 2011 is struck out.
  3. 3.The orders made in the trial Magistrate's Court are set aside.
  4. 4.The Respondent shall have the costs, both of this appeal and in the court below.

Authorities

#

Legislation

  • Registered Land Act (repealed)Section 3 (definition of licence)
  • Registered Land Act (repealed)Section 133(1)
  • Registration of Land Act / Land Registration ActSection 93(1)
  • Land Registration ActSection 28(a)
  • Land Registration ActSection 93(3)
  • Land Registration ActSection 107(1)
  • Matrimonial Property ActSection 6
  • Constitution of KenyaArticle 45
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 3 Rule 1
  • Civil Procedure RulesOrder 37 Rule 8

Cases cited (3)

  • Hannah Nyambura Gikamu vs. Muchai Karu
    [2005] eKLR
  • Joseph Kirowen Chemjor vs. William C. Kisera
    [2013] eKLR
  • Selle vs. Associated Motor Boat Company Ltd
    [1968] EA 123
On appeal from
Principal Magistrate's Court at Nyahururu
PMCC Misc. Application No. 38 of 2011
Jurisdiction invoked
First appellate jurisdiction over appeals from the Principal Magistrate's Court (Environment and Land Court at Nyahururu)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Paul Ngunjiri Wahome v Nancy Wanjiku Ngunjiri [2018] KEELC 3717 (KLR)", Case Analysis (2018). ELC Appeal No. 8 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3717/eng@2018-04-18

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