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ELCStruck OutMiscellaneous Cause (Notice of Motion dated 18th July 2019), ELC Machakos· [2021] KEELC 1039 (KLR)

Sabina Somoine Parteyie v County Lands Registrar Kajiado & another [2021] KEELC 1039 (KLR)

Environment and Land Court
11 November 2021
COCHRISTINE OCHIENG
1,739 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who wants a caution removed from her title lost because she used the wrong court process instead of filing a full lawsuit.

What this practically means

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Executive summary

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The Applicant, Sabina Somoine Parteiyie, registered proprietor of KAJIADO/KAPUTIEI NORTH/46847, moved the court by Notice of Motion dated 18th July 2019 seeking an order directing the County Land Registrar, Kajiado to withdraw a caution lodged by the 2nd Respondent, Grace Mekala Koyiet, who claimed a beneficial interest in the parcel. The Applicant argued the caution was irregular and illegal and that she wished to subdivide the land for her family. The 2nd Respondent, widow of the late Eric Koiyet Parteyie, opposed, averring the land belonged to her late husband, that the original title had been given to him for transfer before his death, that her home is on the parcel where her husband and two children are buried, and that the parcel derives from the estate of Jeremiah Parteyie Shuku whose succession the Applicant had handled, registering land in trust for her children. The court framed a single issue: whether the caution should be removed. Noting that the suit land emanated from a subdivision of the estate land and that the 2nd Respondent's late husband was a listed beneficiary, and associating itself with Joseph Kibowen Chemjor v William C. Kisera on the need to follow proper procedure, the court held the dispute was substantive and could not be resolved in a miscellaneous cause. It struck out the miscellaneous cause, directed the Applicant to file a substantive suit, and ordered each party to bear their own costs as family members.

Key legal issues

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01

Whether the caution over KAJIADO/KAPUTIEI NORTH/46847 should be withdrawn

Holding

No; the application was struck out because the dispute is substantive and was improperly brought in a miscellaneous cause

Reasoning

The Applicant relied on Section 73 of the Land Registration Act and cited persuasive authorities supporting removal of cautions. However, the court noted that annexures showed the suit land emanated from a subdivision of land belonging to the estate of Jeremiah Parteyie Shuku, in whose succession proceedings the 2nd Respondent's late husband was a beneficiary. The underlying dispute over beneficial interest required a substantive suit rather than a miscellaneous application for removal of a caution.

p. 2
02

Whether a miscellaneous cause is a competent vehicle for seeking removal of a caution

Holding

No; commencing the claim in a miscellaneous cause without proper pleadings is incompetent

Reasoning

Associating herself with Munyao Sila J's decision in Joseph Kibowen Chemjor v William C. Kisera on the importance of following prescribed procedures, the court held that the commencement of the claim in a manner that cannot be treated as proper pleadings goes beyond mere technicality. The Applicant had only furnished an extract of the Green Card and a letter from her advocate; the proper course was to file a substantive suit.

p. 2

Legal principles established

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  • Where the dispute underlying the registration of a caution is substantive, it cannot be resolved in a miscellaneous cause but requires a substantive suit set down for hearing

Court orders

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  1. 1.The miscellaneous cause is struck out
  2. 2.The Applicant is directed to file a substantive suit
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Land Registration ActSection 71(3) and (4)
  • Land Registration ActSection 72(1)
  • Land Registration ActSection 73(1)-(6)
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • Beatrice Wambui Maina vs. The Attorney General & Anor.
    ELC. Case No. 486 of 2017
  • Daniel Njagi Muramiti vs. Peter Ndwiga & Anor
  • Mamut Hardware vs. The Chief Land Registrar & Anor.
    ELC. Misc. Civil Application No. 569B of 2016
  • Magdalene Wambui vs. Charles King Kigwe & Anor.
    ELC. No. 45 of 2019
  • Joseph Kibowen Chemjor vs William C. Kisera
    [2013] eKLR
Jurisdiction invoked
Land Registration Act, 2012 (Sections 71, 72(1) and 73) - application for withdrawal/removal of a caution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Sabina Somoine Parteyie v County Lands Registrar Kajiado & another [2021] KEELC 1039 (KLR)", Case Analysis (2021). Miscellaneous Cause (Notice of Motion dated 18th July 2019), ELC Machakos. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1039/eng@2021-11-11

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