Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated in the judgment· [2024] KEELC 6210 (KLR)

Kibisu v Luchidi (Environment & Land Miscellaneous Case E013 of 2024) [2024] KEELC 6210 (KLR)

Environment and Land Court
29 July 2024
AOA.O. Ombwayo
683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A Kenyan court struck out a land dispute application because it was started with the wrong document — you must file a proper suit first.

What this practically means

#

Executive summary

#
The applicant, Robert Tom Martins Kibisu, moved the court by notice of motion dated 1st April 2024 against Paul Sudi Luchidi, seeking temporary injunctions restraining the respondent from selling, alienating or disposing of suit land pending hearing of the application and of the suit, a restraining order against trespass, a permanent order compelling the respondent to exhume the remains of Collins Wangila Sudi from the suit land and inter them elsewhere at his expense, and an order to the OCS Elburgon to ensure compliance and provide security. The application, though served, was unopposed. The court nonetheless examined its own jurisdiction to entertain it, observing that no suit had been filed in any manner prescribed by law. Relying on Sections 2 and 19 of the Civil Procedure Act and Order 3 Rule 1 of the Civil Procedure Rules, 2010, and applying Joseph Kibowen Chemior v William C Kisera [2013] eKLR, the court held that suits must be commenced by Plaint, Petition or Originating Summons, and that a Notice of Motion is not a legally recognized originating process and can only be filed within a properly instituted suit. Finding the application to have no basis in law, the court struck it out and made no orders as to costs. The ruling was delivered electronically on 29th July 2024 by A.O. Ombwayo, Judge.

Key legal issues

#
01

Whether a Notice of Motion can serve as an originating process to commence a suit

Holding

It cannot. Every suit must be instituted in the manner prescribed by the Civil Procedure Rules, namely by Plaint or other prescribed manner, and a Notice of Motion can only be filed within a properly instituted suit.

Reasoning

Section 2 of the Civil Procedure Act defines a suit as civil proceedings commenced in the manner prescribed by rules, and Section 19 requires suits to be instituted as prescribed by rules. Order 3 Rule 1 provides that suits are instituted by Plaint or in such other prescribed manner. The applicant filed a standalone Notice of Motion seeking injunctions and an exhumation order without any underlying suit, so the application lacked legal foundation and was struck out, with no orders as to costs.

p. 1

Legal principles established

#
  • A suit can only be instituted by way of a Plaint, Petition or Originating Summons; a Notice of Motion is not a recognized originating process

Court orders

#
  1. 1.The application dated 1st April 2024 is struck out
  2. 2.No orders as to costs
Jurisdiction invoked
Sections 2 and 19 of the Civil Procedure Act and Order 3 Rule 1 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kibisu v Luchidi (Environment & Land Miscellaneous Case E013 of 2024) [2024] KEELC 6210 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6210/eng@2024-07-29

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