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ELCDismissedEnvironment and Land Miscellaneous Application 28 of 2022· [2022] KEELC 14825 (KLR)

Misigah v Sudi & 4 others

Environment and Land Court
15 November 2022
SKS.M. Kibunja
972 words in judgment
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The bottom line

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A Kenyan court dismissed a landowner's eviction bid because she used the wrong court process, not because she lacked a strong claim.

What this practically means

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Executive summary

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The applicant, Mary Obora Misigah, moved the Environment and Land Court at Mombasa by notice of motion dated 8 March 2022, invoking sections 1A, 3 and 3A of the Civil Procedure Act, section 26 of the Land Registration Act and sections 152A-152G of the Land Act, seeking an eviction order against five respondents from Mombasa Plot No. 364/1/MN (Title No. CR.1728, 40.60 acres) and security from the OCS Bamburi Police Station during eviction. She claimed she and her late husband acquired the land in 1986, became sole proprietor on his death in November 2020, and found squatters occupying about eight acres in October 2021. The respondents, through a replying affidavit sworn by Khamisi Sudi, opposed the application, asserting over twelve years' occupation of land valued at Kshs.400 million and claiming ownership by prescription under sections 38, 7 and 17 of the Limitation of Actions Act, and sought dismissal with costs. S.M. Kibunja J framed two issues: whether a reasonable case for eviction was made out, and costs. The court held that the respondents' prescription claim was a serious challenge to the applicant's title which a miscellaneous application cannot resolve; contentious civil disputes must be commenced by plaint, petition or originating summons, and a notice of motion is not a pleading under section 2 of the Civil Procedure Act, applying three prior decisions. Finding the application without merit, the court dismissed it, ordered each party to bear their own costs notwithstanding section 27 of the Civil Procedure Act, and directed that the file be closed, suggesting the parties file proper suits.

Key legal issues

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01

Whether an eviction order can issue in a miscellaneous application

Holding

No - the application was dismissed because a miscellaneous notice of motion is not a proper forum for a contentious title dispute founded on adverse possession.

Reasoning

The respondents opposed eviction by claiming over 12 years' occupation amounting to ownership by prescription under the Limitation of Actions Act. That raised a serious challenge to the applicant's title requiring pleadings and exhaustive deliberation, which a miscellaneous application cannot accommodate. The applicant was advised to file a proper suit.

p. 2
02

Whether a notice of motion constitutes pleadings for instituting a suit

Holding

No - miscellaneous notice of motion and chamber summons applications are not pleadings for purposes of instituting a suit under section 2 of the Civil Procedure Act.

Reasoning

Relying on decisions in Makueni ELC Misc Appl E12 of 2021 and two Nairobi HCCC cases, the court held that contentious civil disputes must be commenced by plaint, petition or originating summons; a notice of motion is not an originating process and leaves the court without proper pleadings.

p. 2

Legal principles established

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  • A contentious dispute over title and adverse possession cannot be determined in a miscellaneous application; it requires a properly commenced suit with pleadings.

Court orders

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  1. 1.The applicant's notice of motion dated the 8th March 2022 is dismissed.
  2. 2.Each party to bear their own costs.
  3. 3.The file be closed.

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 3, 3A
  • Civil Procedure Actsection 2
  • Civil Procedure Actsection 27
  • Land Registration Actsection 26
  • Land Actsections 152A, 152B, 152E, 152F, 152G
  • Limitation of Actions Actsections 38, 7 and 17
  • Civil Procedure Rulescommencement of suits

Cases cited (3)

  • Norah Ndunge Henry & Another versus Abedinego Mutisya & Another
    Makueni ELC Misc Appl. E12 of 2021

    A miscellaneous notice of motion is not an originating summons for instituting a suit.

  • Fredrick Mwangi Nyaga versus Garam Investments & Another
    Nairobi HCCC No. 249 of 2019

    Miscellaneous notice of motion and chamber summons applications are not pleadings under section 2 of the Civil Procedure Act.

  • Vijay Kumar Davalji Kanji Gohil versus Suresh Mohanlal Fatana & 8 Others
    Nairobi HCCC No. 64 of 2006

    Miscellaneous applications are not pleadings for purposes of instituting a suit.

Jurisdiction invoked
Sections 1A, 3, 3A Civil Procedure Act; section 26 Land Registration Act; sections 152A-152G Land Act

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, "Misigah v Sudi & 4 others", Case Analysis (2022). Environment and Land Miscellaneous Application 28 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14825/eng@2022-11-15

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