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ELCStruck OutNotice of motion dated 12/06/2024· [2025] KEELC 632 (KLR)

Nzioka & 2 others (Administrators of the Estate of David Mutisya Makumbi) v Mutisya & 6 others (Environment & Land Miscellaneous Case E026 of 2024) [2025] KEELC 632 (KLR)

Environment and Land Court
18 February 2025
AKA. Y. Koross
1,117 words in judgment
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The bottom line

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The court struck out a land dispute application because it was filed as a motion without a proper underlying lawsuit, and ordered costs against the applicant.

What this practically means

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Executive summary

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The applicant, an administratrix of the estate of David Mutisya s/o Makumbi (whose grant had not been confirmed), moved the court by notice of motion dated 12/06/2024 seeking orders compelling the 3rd and 4th respondents to furnish land rates clearance certificates and the 5th and 6th respondents to furnish certified copies of registers for nineteen parcels of land in Kamukunji, Nairobi and Mavoko, Machakos. She alleged intermeddling and fraudulent transfers of the deceased's properties by strangers and some beneficiaries, including the 1st and 2nd respondents, and stated she had been burdened with rates arrears. The 1st and 2nd respondents filed grounds of opposition contending the motion was incompetent because no suit had been filed. No submissions were filed and no party attended the mention. The court framed two issues: whether the motion was incompetent, and what orders should issue. Holding that under section 19 of the Civil Procedure Rules every suit must be instituted as prescribed, and that a notice of motion is not a prescribed manner of instituting a suit absent a statutory basis, and there being no substantive originating suit before it, the court — bound by the Court of Appeal decision in Board of Governors, Nairobi School v Jackson Ireri Geta citing Fidelity Bank Limited v John Joel Kanyali — struck out the notice of motion as incompetent and awarded costs to the 1st, 2nd, 5th and 7th respondents.

Key legal issues

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01

Whether a notice of motion can stand without a substantive originating suit

Holding

The notice of motion dated 12/06/2024 was incompetent because there was no substantive originating suit (plaint, petition or originating summons) before the court.

Reasoning

Section 19 of the Civil Procedure Rules requires every suit to be instituted in the manner prescribed by rules. A suit is ordinarily instituted by plaint under Order 3 Rule 1(1); by petition under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013; or by originating summons under Order 37. A notice of motion may only be used in exceptional cases where a statute so provides, or by originating motion where no statutory procedure exists. No such suit or statutory basis existed here; the Land Registration Act merely confers jurisdiction. Bound by the Court of Appeal in Board of Governors, Nairobi School v Jackson Ireri Geta, the court struck out the motion.

p. 3

Legal principles established

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  • A notice of motion is not a manner prescribed for instituting a suit; without a substantive suit (plaint, petition or originating summons), a notice of motion cannot be sustained.

Court orders

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  1. 1.The notice of motion dated 12/06/2024 is declared incompetent and struck out.
  2. 2.Costs awarded to the 1st, 2nd, 5th and 7th respondents.

Authorities

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Legislation

  • Civil Procedure RulesSection 19
  • Civil Procedure RulesOrder 3 Rule 1(1)
  • Civil Procedure RulesOrder 37 Rules 1 and 2
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013
  • Land Registration Act
  • Civil Procedure Act (Cap 21)

Cases cited (4)

  • Abdi Abdullahi Somo vs Ben Chikamai & 2 Others
    [2016] eKLR
  • Benoist Plantations Ltd vs Jean Emile Adrien Felix
    CA No 25 of 1954
  • Board of Governors, Nairobi School v Jackson Ireri Geta
    (1999) KLR
  • Fidelity Bank Limited v John Joel Kanyali
    (2014) eKLR
Jurisdiction invoked
Land Registration Act (jurisdiction over land matters); Civil Procedure Act and Rules; motion moved under constitutional provisions and Order 37 Rules 1 and 2 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, "Nzioka & 2 others (Administrators of the Estate of David Mutisya Makumbi) v Mutisya & 6 others (Environment & Land Miscellaneous Case E026 of 2024) [2025] KEELC 632 (KLR)", Case Analysis (2025). Notice of motion dated 12/06/2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/632/eng@2025-02-18

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