Onesmus Githinji & Company Advocates v Swaleh Mwangi & Company Advocates; Kinoti & Kibe Company Advocates & another (Interested Parties) (Environment and Land Miscellaneous Application E072 of 2025) [2025] KEELC 6328 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a land dispute case because the lawyer filed it as a motion instead of a proper lawsuit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant's Notice of Motion is valid since it is not anchored on a suit and was commenced by way of a miscellaneous application
- 2.Whether the Court has jurisdiction to determine the issues raised, which allegedly concern the interpretation of a contract
Key legal issues
#Whether a miscellaneous Notice of Motion can found substantive orders in a dispute over a sale agreement
No - the claim ought to have been commenced by way of a plaint; the miscellaneous cause was incompetent and was struck out
Section 19 of the Civil Procedure Act requires suits to be instituted as prescribed by the rules, and Order 3 requires institution by plaint. The dispute over the sale agreement of LR No. 209/3271/86 and the payment of the Kshs.135 million purchase price would require vendors and purchasers to present evidence and confirm amounts paid, so it could not be resolved in a miscellaneous cause. The court associated itself with Adala v Anjere and Proto Energy, despite the contrary authority in Abdi Abdullahi Somo.
Legal principles established
#- A suit can only be instituted by a plaint, petition or originating summons; a notice of motion is not recognised as originating process.
- Substantive relief requiring viva voce evidence cannot be sought in a miscellaneous application without filing suit.
Court orders
#- 1.The Notice of Preliminary Objection is found merited
- 2.The miscellaneous cause is declared incompetent and struck out
- 3.Costs awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Inherent jurisdiction exercised on a preliminary objection under civil procedure law (Section 19 of the Civil Procedure Act and Order 3 of the Civil Procedure Rules considered)
Relief refused
#Prayers that the Respondent be compelled to produce a statement of account and that the Applicant be added as a signatory to the account where the purchase price is held
The entire miscellaneous cause was incompetent as substantive orders cannot be sought in a miscellaneous application without filing a suit
Costs
Costs to the Respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstance, I find the instant Notice of Preliminary Objection merited and hold that this miscellaneous cause as it stands is incompetent and will proceed to strike it out with costs to the Respondent.
I opine that the Applicant cannot seek the orders of a substantive nature in this miscellaneous application, without going through the process of filing suit.
A notice of motion is not legally recognized as an originating process. A notice of motion can only be filed within a property instituted suit.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onesmus Githinji & Company Advocates v Swaleh Mwangi & Company Advocates; Kinoti & Kibe Company Advocates & another (Interested Parties) (Environment and Land Miscellaneous Application E072 of 2025) [2025] KEELC 6328 (KLR)", Case Analysis (2025). Not stated in the judgment (Miscellaneous Application dated 28th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6328/eng@2025-09-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.