Rael Chemutai Mayiek (Suing as the administrator of the Estate of Tabutany Cherono Kiget (Deceased)) & 2 others v Kericho District Surveyor & another; Christine Chepngeny Leiting & 2 others (Interested Parties) [2022] KEELC 905 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a Miscellaneous Application could properly institute substantive proceedings seeking cancellation of title deeds
No - the relief sought was contentious, requiring determination of rights between the parties, and the suit had to be commenced by plaint or Originating Summons in the prescribed manner, not a Miscellaneous Application
Section 19 of the Civil Procedure Act requires every suit to be instituted as prescribed by rules, and Order 3 Rule 1 requires a plaint or other prescribed manner. A Miscellaneous Application is appropriate only where no 'action' is being enforced and the court is not being asked to settle rights or obligations. Here the Applicants sought cancellation of titles obtained allegedly unlawfully - a contentious matter to be tried on merits - so the mode of commencement went beyond a mere technicality and rendered the application incompetent.
Whether striking out offends Article 159(2)(d) of the Constitution
No - commencing substantive proceedings in a defective institutional mode is not a mere technicality
The Interested Parties argued, per Board of Governors Nairobi School v Jackson Ireri Geta, that instituting documents not properly constituted cannot be pleadings. The court accepted the suit commenced by Miscellaneous Application for determination of rights is fatally defective and incompetent, so striking out does not offend the overriding objective.
Whether cancellation of allegedly fraudulently obtained titles requires a hearing of affected parties
Yes - under Article 47 of the Constitution, persons must be heard before adverse action is taken on their rights over land, and such matters must be tried on merits
Section 26(1)(b) of the Land Registration Act permits rectification of fraudulently obtained titles by court order, and the Court of Appeal in Paul Muira v Jane Kendi Ikinyua held the law does not protect property obtained unlawfully. However, Article 47 requires an opportunity to be heard before rights over suit property are adversely affected, underscoring the need for proper substantive proceedings.
Legal principles established
#- Where a civil action is brought to enforce, redress or protect a private or civil right, the suit must be commenced in the manner prescribed by the Rules; a Miscellaneous Application is permissible only where the court is not asked to determine rights of the parties
Court orders
#- 1.The Preliminary Objection dated the 26th October 2021 is allowed
- 2.The Application dated 5th June 2020 and filed on 9th June 2020 is struck out for being incompetent
- 3.Costs of the Preliminary Objection awarded
- Jurisdiction invoked
- Environment and Land Court jurisdiction under its statute (uncited in the judgment); proceedings brought under Order 37 Rule 1(a)(g) and Rule 2(b) and (c) of the Civil Procedure Rules, Sections 3A and 63(e) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rael Chemutai Mayiek (Suing as the administrator of the Estate of Tabutany Cherono Kiget (Deceased)) & 2 others v Kericho District Surveyor & another; Christine Chepngeny Leiting & 2 others (Interested Parties) [2022] KEELC 905 (KLR)", Case Analysis (2022). Miscellaneous Application dated 5th June 2020 (filed 9th June 2020), Kericho. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/905/eng@2022-03-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.