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ELCStruck OutEnvironment and Land Miscellaneous Application E009 of 2022· [2022] KEELC 14574 (KLR)

Atweng’a v Ochola & 2 others

Environment and Land Court
3 November 2022
AKA. Y. Koross
1,920 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a landowner's injunction application because he filed it as a miscellaneous application without first filing a proper lawsuit.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of land parcel Asembo/Ramba/5611, filed a notice of motion dated June 23, 2022 seeking a temporary injunction restraining the defendants from entering, subdividing or interfering with the suit property, an order lifting a caution lodged by the 1st defendant and registered by the 2nd defendant on February 15, 2022, and costs. He contended the caution was lodged contrary to section 72 of the Land Registration Act and that the defendants planned to illegally subdivide his land. The 1st defendant opposed, averring the land was held in trust for the family of the late Richard Ochar Atweng’a, that the plaintiff had agreed to allocate 1.4 ha to that family, and that the caution was justified. Parties filed rival written submissions. The court framed three issues: competence of the motion, its merit, and costs. Addressing competence first, the court noted the plaintiff had annexed an unfiled plaint to the miscellaneous application, meaning the motion did not supplement any filed suit. Relying on Anastacia Wagiciengo v Ezekiel Wafula, it held that interlocutory orders under section 63(e) of the Civil Procedure Act cannot be granted in a vacuum and must be premised on substantive proceedings. The weighty issues of ownership, customary trust and an alleged family agreement required a full hearing. Agreeing with the 1st defendant's counsel and following Sabina Somoine Parteyie v County Lands Registrar Kajiado, the court found the motion incurably defective and incompetent, struck it out and awarded costs to the 1st defendant. The merits of the injunction and caution applications were never reached.

Key legal issues

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01

Whether the motion filed as a miscellaneous application, without a filed substantive suit, was competent

Holding

The motion was incurably defective and incompetent because it did not supplement any filed suit; it was struck out

Reasoning

The plaintiff annexed an unfiled plaint to the miscellaneous application. The court held that the interlocutory reliefs sought (injunction and lifting of a caution) presuppose substantive proceedings. The disputed issues - ownership, customary trust, alleged family agreement and intended subdivision - were weighty and required a full hearing. Following Anastacia Wagiciengo v Ezekiel Wafula and Sabina Somoine Parteyie, the court found the motion could not stand in a vacuum and struck it out with costs to the 1st defendant.

p. 4

Legal principles established

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  • Interlocutory orders under section 63(e) of the Civil Procedure Act cannot be granted in a vacuum; they must be premised on substantive proceedings
  • A miscellaneous application raising weighty ownership and trust issues that require a full hearing is incompetent and may be struck out

Court orders

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  1. 1.The notice of motion dated June 23, 2022 is struck out
  2. 2.Costs of the motion awarded to the 1st defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(c) and (e)
  • Environment and Land Court ActSection 13(1)
  • Land Registration ActSections 72(1), 73(1), 75
  • Civil Procedure RulesOrder 40 rules 1 and 2; Order 51

Cases cited (9)

  • Isabela Chelangat v Samuel Tiro Rotich & 5 others
    [2012] eKLR

    Right of survivorship in joint tenancy takes precedence over will or intestacy

  • Maria Nganga Gwako v Charles Mwenzi Nganga
    Civil Appeal Number 287 of 2012 [2014] eKLR

    A cautioner must justify why he placed a caution

  • Ahmed Ibrahim Suleiman & another v Noor Khamisi Surur
    (2013) eKLR

    A cautioner must have an interest in the suit property

  • Zablon Kamau Nyoro (suing as the legal representative of the estate of John Nyoro Ngigi v Lason Mayodi Ombisa & 2 others)
    [2019] eKLR

    Entitlement to damages for unlawfully registered caution under section 75 of the Land Registration Act

  • Giella v Cassman Brown & another
    [1973] EA 358

    Settled principles for grant of temporary injunction

  • Selly Jepchumba Samoei & 3 others v Kimwei Arap Samoei
    [2020] eKLR

    Citing Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari on customary trust categories

  • Isack M'Inanga Kiepia -v- Isaaya Theuri M'Lintari & another
    Supreme Court Petition No 15 of 2015

    Categories of customary trust are not closed; determined on evidence

  • Sabina Somoine Parteyie v County Lands Registrar Kajiado & another
    [2021] eKLR

    Miscellaneous cause incompetent where substantive suit required; struck out

  • Anastacia Wagiciengo v Ezekiel Wafula
    [2018] eKLR

    Interlocutory orders under section 63(e) cannot be granted in a vacuum

Jurisdiction invoked
Sections 1A, 1B, 3A, 63(c) and (e) of the Civil Procedure Act; section 13(1) of the Environment and Land Court Act; section 73(1) of the Land Registration Act; Orders 40 rules 1 and 2 and 51 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Atweng’a v Ochola & 2 others", Case Analysis (2022). Environment and Land Miscellaneous Application E009 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14574/eng@2022-11-03

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