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ELCStruck OutMiscellaneous Application (Notice of Motion dated 10/8/16)· [2019] KEELC 3984 (KLR)

Grace Wambui Njambuya v John Waweru Wamai [2019] KEELC 3984 (KLR)

Environment and Land Court
28 March 2019
JKJ G Kemei
963 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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You cannot ask a court to remove a land prohibition order without showing the original order and suing the right party — this application failed on both counts.

What this practically means

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Executive summary

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The applicant, administrator of the estate of Edward Njambuya Njiiri under Nairobi High Court Succession Cause No. 1965 of 1999, moved the court by notice of motion dated 10/8/16 seeking removal of a prohibitory order registered on parcel L.R. LOC.14/KAMUNE/199 by the Respondent, arguing the order blocked her from transferring the land to herself as directed by the Probate Court. The search showed the prohibition was registered on 16/3/93 vide Misc. Civil Appeal No. 23 of 1993, High Court Nyeri. The Respondent opposed through grounds of opposition, contending the application was frivolous, vexatious and fatally defective, since the substantive relief sought could only be granted through a substantive suit by way of a plaint, petition or originating summons, and that only the court which issued the prohibitory orders, or the succession court, could lift them. The court framed one question: whether the application was merited. It held that neither party had enclosed the 1993 orders, so the court could not appreciate the nature of the prohibition, whether it was spent, the parties involved or its duration. It further found that the orders were directed at the Land Registrar, Murang'a, who was not enjoined as a party and had no power to remove the orders; a court cannot act in vain. The application was struck out with costs to the Respondent.

Key legal issues

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01

Whether the applicant's notice of motion seeking removal of a prohibitory order registered on the suit land was merited

Holding

The application was struck out; the applicant failed to place before the court the 1993 prohibitory orders to show their nature, duration or whether spent, and sought orders against the Land Registrar who was neither enjoined as a party nor had power to remove the orders

Reasoning

The court noted the official search showed the prohibition was registered vide Misc. Civil Application No. 23 of 1993, High Court Nyeri. Neither party enclosed those orders, so the court could not appreciate the nature of the prohibition, the parties involved, what was prohibited or its duration. Further, the Land Registrar, against whom the removal orders were directed, was not a party to the application, and orders cannot issue in vain against a party without power to comply.

p. 2

Legal principles established

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  • A prohibition on land may be cancelled after the expiry of the time for which it was ordered or on proof of occurrence of the event stated in the prohibition
  • A court cannot act in vain and its orders cannot be issued in vain; orders cannot be directed against a party not enjoined and without power to comply

Court orders

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  1. 1.The application is struck out
  2. 2.Costs to the Respondent
Jurisdiction invoked
Original jurisdiction under unspecified enabling provisions of the Environment and Land Court Act (notice of motion under unspecified enabling provisions)

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, "Grace Wambui Njambuya v John Waweru Wamai [2019] KEELC 3984 (KLR)", Case Analysis (2019). Miscellaneous Application (Notice of Motion dated 10/8/16). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3984/eng@2019-03-28

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