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ELCStruck OutMiscellaneous ELC No. 13 of 2020· [2020] KEELC 526 (KLR)

Rajab Kosgei Magut v Nuru Jepleting Choge [2020] KEELC 526 (KLR)

Environment and Land Court
18 November 2020
MOM. A. Odeny
1,735 words in judgment
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The bottom line

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Kenya's Environment and Land Court struck out a landowner's attempt to remove a restriction on his title because he filed the wrong type of application.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) determined a preliminary objection dated 21st September 2020 raised by the respondent in Miscellaneous ELC No. 13 of 2020. The applicant had moved the court by Notice of Motion dated 19th May 2020 seeking an order compelling the County Land Registrar to remove a restriction registered by the respondent over land parcel No. Uasin Gishu/Chepsaita Settlement Scheme/828, registered in the name of Rajab Kipkoskei Magut. The respondent objected that there was no properly filed suit before the court, that the miscellaneous application was commenced by unprocedural means and was fatally defective, and that it contravened Article 159 of the Constitution and Sections 1A and 1B of the Civil Procedure Act. The 2nd respondent supported the objection. Counsel for the applicant relied on Section 19 of the Civil Procedure Act and Order 3 rule 1 of the Civil Procedure Rules, and on Peter Kwema Kahoro v Benson Maina Githethuki, Geoffrey Ndungu Theuri v Law Society of Kenya and an earlier Eldoret ELC decision. The court framed the sole issue as whether a party can enforce a right through a miscellaneous application. Relying on Joseph Kibowen Chemjor v William C Kisera and Section 73 of the Land Registration Act, it held that a Notice of Motion is not legally recognized as an originating process and that an action for removal of a caution or restriction must be commenced by plaint. The preliminary objection was upheld and the application struck out with costs to the 1st respondent. The court also cautioned counsel against loading affidavits of lay deponents with legalistic material.

Key legal issues

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01

Whether an application for removal of a restriction on land title can be commenced by way of a miscellaneous Notice of Motion

Holding

No; such an application is a civil action which must be commenced in the manner prescribed by the Civil Procedure Rules, i.e. by plaint, petition or originating summons. The Notice of Motion was incompetent and was struck out.

Reasoning

Section 19 of the Civil Procedure Act requires every suit to be instituted in the manner prescribed by rules, and Order 3 rule 1 prescribes a plaint or such other manner as may be prescribed. Relying on Joseph Kibowen Chemjor v William C Kisera, the court held that an action for removal of a caution/restriction must be commenced by plaint where the applicant proves on a balance of probabilities that the respondent has no right to place the restriction. A Notice of Motion cannot be used as a shortcut to access justice where laid-down procedures exist.

p. 3
02

Whether the preliminary objection raised by the respondent was proper

Holding

Yes; it was a pure point of law going to the competence of the mode of commencing the proceedings and did not require ascertainment of facts.

Reasoning

The court reiterated that preliminary objections may be raised at any time before judgment but must rest on points of law. The objection that the miscellaneous application was commenced by unprocedural means and was fatally defective required no evidence and therefore qualified as a proper preliminary objection. The court found it had merit and upheld it, striking out the application dated 19th May 2020 with costs to the 1st respondent.

p. 3

Legal principles established

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  • A civil suit can only be instituted by way of a plaint, petition or originating summons; a Notice of Motion is not an originating process and can only be filed within a properly instituted suit
  • A preliminary objection can be raised at any time before judgment but must be on a point of law that does not require the court to ascertain facts or evidence

Court orders

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  1. 1.The preliminary objection dated 21st September 2020 is upheld
  2. 2.The applicant's application (Notice of Motion) dated 19th May 2020 is struck out
  3. 3.Costs of the application awarded to the 1st respondent

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159
  • Civil Procedure ActSection 19; Section 1A; Section 1B; Section 2
  • Civil Procedure Rules 2010Order 3 rule 1
  • Land Registration ActSection 73
  • Probate & Administration Rules

Cases cited (4)

  • Peter Kwema Kahoro Vs Benson Maina Githethuki
    [2005] eKLR
  • Geoffrey Ndungu Theuri Vs Law Society of Kenya
    (1998) eKLR
  • In the matter of the Estate of Cheptoo Rotich alias Lotobiko Cheptoo Rotich (deceased) and in the estate of Constantina Kabon Komen (deceased) between Alois Yano Chebet, Joseph Yano Murkomen and Kaino Kanda Rotich Vs Keneth K. Komen
    ELDORET ELC MISC APPLICATION NO 26 OF 2017
  • Joseph Kibowen Chemior V William C Kisera
    [2013] eKLR
Jurisdiction invoked
Articles 159 and 162(2)(b) of the Constitution of Kenya 2010 (Environment and Land Court jurisdiction); Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rajab Kosgei Magut v Nuru Jepleting Choge [2020] KEELC 526 (KLR)", Case Analysis (2020). Miscellaneous ELC No. 13 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/526/eng@2020-11-18

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