Shikoliko v Musalia & 5 others
The bottom line
#A Kakamega court refused to revive a land suit dismissed for inaction, ruling the owner could remove the property restriction himself without going back to court.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated
The application was dismissed; no valid reason for non-prosecution was given, the delay was inordinate, and no intention to prosecute was demonstrated.
The court applied the Mbogoh v Shah principles as reiterated in James Kanyiita Nderitu. The applicant gave only bare assertions of out-of-court settlement attempts without affidavit detail, and the respondent did not corroborate negotiations. The application itself lay dormant for years and was only heard following the court's suo moto direction. The real motive was removal of a restriction, which did not require reinstatement.
Whether reinstatement was necessary to remove the restriction on the suit property
No; the restriction was registered pursuant to the applicant's own instructions to the Land Registrar and could be removed without a court order under Section 78 of the Land Registration Act.
The court found the restriction was not registered pursuant to any order in the matter but on the applicant's own instructions. Section 78 of the Land Registration Act therefore provided a direct statutory route for its removal, removing the stated motivation for reinstating the suit. The apportionment issue was being addressed in a succession cause.
Legal principles established
#- In an application to set aside dismissal for want of prosecution, the court exercises an unfettered discretion considering the reason for failure to prosecute, the length of delay, prejudice to each party and the interest of justice.
- Under Section 78 of the Land Registration Act, a restriction registered at a party's own instructions does not require a court order to be removed.
Court orders
#- 1.The Notice of Motion dated 23rd May 2018 is dismissed
- 2.No order on costs
- Jurisdiction invoked
- Inherent discretion to set aside dismissal for want of prosecution (suit transferred to the Environment and Land Court under its transferred-file jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shikoliko v Musalia & 5 others", Case Analysis (2022). Environment & Land Case 24 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15046/eng@2022-11-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.