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ELCStruck OutMisc. Application (ELC Thika), filed 21st April 2017· [2018] KEELC 4334 (KLR)

Eric Timothy Balongo v Land Registrar Kiambu Land District & 2 others [2018] KEELC 4334 (KLR)

Environment and Land Court
23 February 2018
1,995 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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Eric Timothy Balongo, the registered proprietor of LR.No.Dagoretti/Thogoto/T.373 having purchased it at a public auction on 13th February 2015, filed a miscellaneous application seeking removal of a restriction registered on 9th June 2016 against the title at the instance of David Wangonya Kuria, the former registered proprietor, together with a permanent injunction restraining further restrictions and costs. The Land Registrar and the Attorney General did not respond. The 3rd Respondent raised a preliminary objection that the application was sub judice in view of pending Milimani ELC No.544 of 2016, a suit he had filed challenging the Applicant's ownership, and an abuse of process. The court directed that the objection be canvassed first by written submissions. Relying on Quick Enterprises and the Mukisa Biscuit definition, the court found the objection a pure point of law. It held that the title to the suit property was directly and substantially in issue in ELC No.544 of 2016, that removal of the restriction would affect the status quo of the property pending that suit's conclusion, and that the Applicant, aware of the ownership challenge, should have filed the application in that suit or waited. The application was accordingly held to offend Section 6 of the Civil Procedure Act and to constitute an abuse of the court process. The preliminary objection was upheld, the application struck out, with costs awarded to the 3rd Respondent.

Key legal issues

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01

Whether the preliminary objection was a pure point of law

Holding

The objection stems from the pleadings, is a pure point of law capable of disposing of the application, and meets the Mukisa Biscuits test

Reasoning

The court applied the Mukisa Biscuit definition and Quick Enterprises, holding that the objection based on Section 6 of the Civil Procedure Act required no ascertainment of facts beyond the pleadings and could bring the application to an end at the preliminary stage.

p. 4
02

Whether the application was sub judice ELC No.544 of 2016

Holding

Yes - the title to LR.No.Dagoretti/Thogoto/T.373 is directly and substantially in issue in the pending ELC suit, so the application offends Section 6 of the Civil Procedure Act

Reasoning

The restriction challenged in this application was placed because of the pending ownership suit. Removal of the restriction would alter the status quo of the suit property before determination of ELC No.544 of 2016. The court held the Applicant should have filed this application in that suit or awaited its conclusion; the same title being litigated renders the matters substantially the same despite differences in parties and relief framed.

p. 4
03

Whether the application was an abuse of court process

Holding

Yes - filed with knowledge of the pending ownership challenge

Reasoning

Having purchased at auction and knowing the 3rd Respondent had sued to challenge his acquisition, the Applicant nonetheless moved the court to remove the restriction before determination of that suit, effectively attempting to pre-empt the pending litigation, which the court characterized as an abuse of process.

p. 4

Legal principles established

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  • Where the subject matter of an application is directly and substantially in issue in a previously instituted suit between the parties, the application is barred by the sub judice rule under Section 6 of the Civil Procedure Act
  • Filing an application over property whose ownership is already in dispute in a pending suit, with knowledge of that suit, constitutes an abuse of the court process

Court orders

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  1. 1.The Applicant's Notice of Motion dated (filed 21st April 2017) is struck out with costs to the 3rd Respondent

Authorities

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Legislation

  • Land Registration ActSections 76(1), 78(1)
  • Civil Procedure Act (Cap 21)Section 6

Cases cited (3)

  • Kenya Breweries Ltd & Ano. Vs. Washington O. Okeyo
    Civil Appeal No.332 of 2000, 1EA 109
  • Mukisa Biscuit Manufacturing Ltd Vs. West End Distributors Ltd
    (1969) EA 697
  • Quick Enterprises Ltd Vs. Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act in relation to land registered under the Land Registration Act, No. 3 of 2012

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, "Eric Timothy Balongo v Land Registrar Kiambu Land District & 2 others [2018] KEELC 4334 (KLR)", Case Analysis (2018). Misc. Application (ELC Thika), filed 21st April 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4334/eng@2018-02-23

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