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ELCDismissedEnvironment & Land Case 24 of 2021· [2022] KEELC 15046 (KLR)

Shikoliko v Musalia & 5 others

Environment and Land Court
22 November 2022
1,124 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kakamega (Ohungo J) determined the plaintiff's Notice of Motion dated 23rd May 2018 seeking to set aside the dismissal of his suit for want of prosecution and to have it reinstated. The suit, originally filed in the High Court at Kitale in 2011 and transferred through Kakamega High Court to the ELC, had been dismissed on 9th July 2015, although the application erroneously referred to a dismissal on 7th July 2013. The applicant explained that he had sought restriction orders preserving the suit property and later wished to have them removed, discovering only when attempting to file an application in March 2018 that the suit stood dismissed. The first respondent, while supporting reinstatement for purposes of determining apportionment of the suit property, Kakamega/Kongoni/2405, asked that the restrictions remain. Applying the Mbogoh v Shah principles as reiterated in James Kanyiita Nderitu, the court found no valid reason for the failure to prosecute, held the applicant guilty of inordinate delay (nearly three years, with the application itself dormant until the court's suo moto direction of 5th May 2022), and found no demonstrated intention to prosecute. The court observed that the restriction was registered at the applicant's own instructions and could be removed under Section 78 of the Land Registration Act without a court order, and that apportionment was being addressed in a succession cause. The application was dismissed with no order on costs.

Key legal issues

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01

Whether the dismissal of the suit for want of prosecution should be set aside and the suit reinstated

Holding

The application was dismissed; no valid reason for non-prosecution was given, the delay was inordinate, and no intention to prosecute was demonstrated.

Reasoning

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.

02

Whether reinstatement was necessary to remove the restriction on the suit property

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 23rd May 2018 is dismissed
  2. 2.No order on costs

Authorities

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Legislation

  • Land Registration ActSection 78

Cases cited (2)

  • Mbogoh & another v Shah
    [1968] EA 93

    Principles governing setting aside dismissal for want of prosecution

  • James Kanyiita Nderitu & another v Marios Philotas Ghikas & another
    [2016] eKLR

    Recent reiteration of the Mbogoh v Shah principles

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

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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, "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.