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ELCDismissedMiscellaneous Cause (Notice of Motion dated 28th October 2019), Kajiado· [2021] KEELC 3274 (KLR)
Nickson Simitia Isina v District Land Registrar, Kajiado [2021] KEELC 3274 (KLR)
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·~6 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Applicant, Nickson Simitia Isina, as legal representative of the estate of Mariabie Ole Isina Katopi, moved the court by Notice of Motion dated 28th October 2019 seeking an order compelling the Respondent, the Land Registrar Kajiado, to supply certified copies of documents used in the transfer of land parcel Kajiado/Kisaju/1178 from Mariabie Ole Sina Katopi to KODES MINES LIMITED and of parcel Kajiado/Kisaju/1621 from KODES MINES LIMITED to Henry Barnabas Njuguna and Leah Kirigo Njuguna. The Applicant alleged the land was fraudulently transferred, and that documents earlier supplied by the Registry were uncertified and illegible. He relied on sections 1A, 1B and 3A of the Civil Procedure Act and Articles 35 and 159(2) of the Constitution. The Respondent opposed, arguing the application was misconceived, an abuse of process, and that the documents had already been supplied; he also undertook to heed witness summons issued in the pending ELC Case No. 15 of 2018 (formerly Nairobi ELC Case No. 1341 of 2016). The court framed a single issue: whether the Respondent should be directed to furnish the documents. Holding that the documents had already been furnished and that questions of legibility belonged in the pending ELC suit, the court found the miscellaneous cause incompetent, contrary to the doctrine of lis alibi pendens, and an abuse of court process, associating itself with Muchanga Investments, Attahiro v Bagudo, Sarak v Kotoye, Omtatah Okoiti, Adala v Anjere and Sumbeiywo Primary School. The Notice of Motion was dismissed with costs to the Respondent.
Key legal issues
#01
Whether the Respondent should be compelled to furnish certified copies of the transfer documents for Kajiado/Kisaju/1178 and Kajiado/Kisaju/1621
Holding
The application was dismissed as unmerited because the documents had already been furnished, and the cause was an incompetent, abusive parallel proceeding to the pending ELC case
Reasoning
The Applicant admitted the Respondent's subordinates had furnished him with the documents, which he alleged were illegible and uncertified. The Respondent had also been served with witness summons in ELC Case No. 15 of 2018 to produce the documents. The Applicant should have raised legibility within the pending ELC suit; filing a separate miscellaneous cause offended the doctrine of lis alibi pendens and the rules of procedure, constituting an abuse of court process.
p. 2
Legal principles established
#- A party seeking production of documents for use in a pending suit should move that suit rather than file a separate miscellaneous cause; a parallel proceeding over a dispute already pending offends the doctrine of lis alibi pendens and amounts to abuse of court process
- Abuse of judicial process includes a proceeding not supported by any law or premised on frivolity or recklessness
Court orders
#- 1.The Notice of Motion dated 28th October 2019 is dismissed
- 2.Costs of the application to the Respondent
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 35 and 159(2) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nickson Simitia Isina v District Land Registrar, Kajiado [2021] KEELC 3274 (KLR)", Case Analysis (2021). Miscellaneous Cause (Notice of Motion dated 28th October 2019), Kajiado. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3274/eng@2021-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.