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ELCStruck OutMisc Application No E022 of 2024· [2025] KEELC 3692 (KLR)

Mbogo & another (Suing as the Personal Representatives of the Estate of Francis Mbogo Ndambirii) v Family Bank Limited & another (Miscellaneous Application E022 of 2024) [2025] KEELC 3692 (KLR)

Environment and Land Court
8 May 2025
JMJ. M. Mutungi
2,077 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck down an estate's bid to stop a land sale because it was filed as a standalone application instead of a proper lawsuit.

What this practically means

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Executive summary

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The Applicants, administrators of the estate of the late Francis Mbogo Ndambiri, filed a Notice of Motion dated 11th October 2024 seeking injunctive relief against the sale of three parcels of land belonging to the estate, alleging the 1st Respondent (a lender) had unlawfully instructed the 2nd Respondent to sell the charged properties without proper statutory notice and in violation of a pending succession cause in Kerugoya High Court Succession No. 26 of 2018. Ex parte injunctive orders were issued on 14th October 2024. The 1st Respondent applied to set aside those orders, asserting the auction had already taken place on 14th October 2024, that statutory notices under the Land Act were duly served, and that the debt exceeded Kshs 22 million. The Respondents also raised a preliminary objection that the application was not anchored on any pleading or substantive suit, contrary to Section 19 of the Civil Procedure Act and Order 3 Rules 1 and 2 of the Civil Procedure Rules. The court framed two issues: competency of the application and entitlement to injunctive relief. Applying Order 3 Rule 1 and precedent including Proto Energy v Hashi Energy, Chacha v Orbit Chemicals, Cresta Investments and Mbugua v Mbugua, the court held that a suit may only be instituted by plaint, petition or originating summons, and that a Notice of Motion cannot originate substantive proceedings or support injunctive relief. Finding no proper suit before it, the court struck out the Applicants' application as incompetent, misconceived and an abuse of the court, with costs to the Respondents, and discharged the interim orders issued on 11th October 2024.

Key legal issues

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01

Competency of a miscellaneous Notice of Motion seeking injunctive relief without a substantive suit

Holding

The application was fatally defective and unsustainable as it sought substantive/final relief through a miscellaneous application not anchored on a plaint, petition or originating summons.

Reasoning

The court applied Order 3 Rule 1 of the Civil Procedure Rules and precedent holding that a Notice of Motion is not legally recognised as an originating process. Since the applicants sought injunctions without any pending suit, there would be nothing left for the court to determine once the application was decided, and no foundation existed for the temporary injunctive relief sought.

p. 4

Legal principles established

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  • A suit may only be instituted by way of plaint, petition or originating summons; a Notice of Motion is not a recognised originating process.
  • Temporary injunctions under Order 40 may only issue in pending suits, not in applications not anchored in a suit.

Court orders

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  1. 1.The Applicants' Notice of Motion dated 11th October 2024 is struck out with costs to the Respondents
  2. 2.The Interim Order issued on 11th October 2024 is discharged

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3A, 63 and 3
  • Civil Procedure Rules, 2010Order 3 Rules 1 and 2; Order 40 Rules 1, 2 and 4
  • Land ActStatutory notices (provisions not specified)

Cases cited (4)

  • Proto Energy Limited v Hashi Energy Limited
    [2019] KEHC 12311 (KLR)
  • Chacha & Another v Orbit Chemicals Industries Limited & Another
    [2024] KEELC 3278 (KLR)
  • Cresta Investments Limited v Gulf African Bank Limited & Another
    [2020] KEHC 993 (KLR)
  • Mbugua & Another v Mbugua & 4 Others
    [2024] KEHC 2403 (KLR)
Jurisdiction invoked
Civil Procedure Act (Sections 1A, 1B, 3A and 63) and Civil Procedure Rules, Order 40 Rules 1, 2 and 4

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, "Mbogo & another (Suing as the Personal Representatives of the Estate of Francis Mbogo Ndambirii) v Family Bank Limited & another (Miscellaneous Application E022 of 2024) [2025] KEELC 3692 (KLR)", Case Analysis (2025). Misc Application No E022 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3692/eng@2025-05-08

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