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ELCStruck OutMiscellaneous Application dated 10/12/2018 (filed 14/12/2018)· [2019] KEELC 4338 (KLR)

Mwanamisi Chematu Kiprures & another v Stephen Kipkures Masai [2019] KEELC 4338 (KLR)

Environment and Land Court
11 March 2019
1,493 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck down a land inhibition application filed alone, confirming such urgent orders must anchor a proper lawsuit.

What this practically means

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Executive summary

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The applicants moved the Environment and Land Court at Kitale by a miscellaneous application dated 10/12/2018 seeking inhibition of registration of any dealings over land parcel Trans Nzoia/Cherangani/982, on grounds that the land was matrimonial property jointly purchased by the 1st applicant and the respondent, who was allegedly attempting to dispose of it without consent. The application was brought under Section 68 of the Land Registration Act, Section 18(c) of the Environment and Land Court Act and Section 3A of the Civil Procedure Act. The court accepted that it had jurisdiction to issue inhibition orders in suitable conditions, but held that the application was fatally defective because it was filed independently of any suit commenced by a recognized legal means, contrary to Order 3 Rule 1 of the Civil Procedure Rules. Relying on Peter Kwema Kahoro -vs- Benson Maina Githethuki and Geoffrey Ndungu Theuri -vs- Law Society of Kenya, the court held that substantive and final relief cannot be sustained through an application not rooted in a suit, and that invocation of Section 3A could not save it. The application was struck out with no orders as to costs.

Key legal issues

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01

Competence of a miscellaneous application without a suit

Holding

The application was fatally defective because it was filed independently of a suit

Reasoning

Although Section 68 of the Land Registration Act confers power on the court to issue inhibition orders, the court noted that the application was a miscellaneous application with no suit commenced by any recognized legal means. Order 3 Rule 1 of the Civil Procedure Rules requires every suit to be instituted by presenting a plaint or in such other manner as prescribed. Relying on Peter Kwema Kahoro and Geoffrey Ndungu Theuri, the court held that substantive and final relief cannot be sustained through an application not rooted in a suit, and even the inherent powers under Section 3A of the Civil Procedure Act could not save such an application.

p. 3
02

Jurisdiction to issue inhibition orders

Holding

The court has jurisdiction under Section 68 of the Land Registration Act to issue inhibition orders in suitable conditions

Reasoning

The court examined Section 68 of the Land Registration Act, Section 18(c) of the Environment and Land Court Act and Section 3A of the Civil Procedure Act, and concluded that it was possessed of jurisdiction to issue inhibition orders. However, jurisdiction alone did not save the application, since the defect lay in the absence of a suit rather than in the court's powers.

p. 2

Legal principles established

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  • An application for inhibition under Section 68 of the Land Registration Act must be rooted in a suit with a reasonable cause of action filed in accordance with the rules; it cannot be sustained in a miscellaneous application without a suit

Court orders

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  1. 1.The application dated 10/12/2018 and filed on 14/12/2018 is struck out for being fatally defective for being filed independently of a suit
  2. 2.No orders as to costs

Authorities

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Legislation

  • Land Registration Act No. 3 of 2012Section 68
  • Environment and Land Court ActSection 18(c)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 19
  • Civil Procedure ActSection 2
  • Civil Procedure Rules 2010Order 3 Rule 1
  • Civil Procedure RulesOrder IV Rule 1 / Order 39

Cases cited (2)

  • Peter Kwema Kahoro -vs- Benson Maina Githethuki
    [2005] eKLR
  • Geoffrey Ndungu Theuri -vs- Law Society of Kenya
    1998 eKLR
Jurisdiction invoked
Section 68 of the Land Registration Act No. 3 of 2012; Section 18(c) of the Environment and Land Court Act; Section 3A of the Civil Procedure Act

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, "Mwanamisi Chematu Kiprures & another v Stephen Kipkures Masai [2019] KEELC 4338 (KLR)", Case Analysis (2019). Miscellaneous Application dated 10/12/2018 (filed 14/12/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4338/eng@2019-03-11

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