Mwanamisi Chematu Kiprures & another v Stephen Kipkures Masai [2019] KEELC 4338 (KLR)
The bottom line
#A Kenyan court struck down a land inhibition application filed alone, confirming such urgent orders must anchor a proper lawsuit.
What this practically means
#Executive summary
#Key legal issues
#Competence of a miscellaneous application without a suit
The application was fatally defective because it was filed independently of a suit
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.
Jurisdiction to issue inhibition orders
The court has jurisdiction under Section 68 of the Land Registration Act to issue inhibition orders in suitable conditions
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.
Legal principles established
#- 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
#- 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.No orders as to costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.