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ELCStruck OutOriginating Summons dated 17th February, 2025· [2025] KEELC 6583 (KLR)

CM Advocates LLP v Cole & Moikobu (Sued as the Administrators of the Estate of Josephine Eleanor Moikobu) & 3 others (Land Case (Originating Summons) E009 of 2025) [2025] KEELC 6583 (KLR)

Environment and Land Court
30 September 2025
3,912 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a suit challenging a Karen property transfer, ruling that disputes about enforcing earlier court orders belong in the court that issued them.

What this practically means

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Executive summary

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The Applicant, an advocate who formerly acted for the 1st Respondent, obtained a charging order and injunctive/inhibition orders over the suit property L.R 1159/92 I.R 19925 (now Nairobi/Block 47/367 Karen Mutuini) on 20th December 2022 in ELC E015 of 2020, in respect of unpaid legal fees for work done for the Estate of Josephine Eleanor Moikobu. The orders were never registered against the title, and the property was subsequently sold and transferred to the 3rd Respondent. The Applicant then filed this Originating Summons on 17th February 2025 seeking interim injunctions, an inhibition, production of sale records, a declaration that the transfer was fraudulent, its cancellation, re-registration in the 2nd Respondent's name and a prohibition pending taxation. The 1st and 2nd Respondents raised a preliminary objection contending that the court lacked jurisdiction because enforcement of the ELC E015 of 2020 orders lay in the issuing court under Section 34 of the Civil Procedure Act and Order 22 Rule 6 of the Civil Procedure Rules, and that the suit was an abuse of process. Applying Mukisa Biscuits, the court held the objection was a pure point of law and well taken. It found the dispute inextricably linked to enforcement of the earlier orders, so entertaining it would risk conflicting orders. The court declined jurisdiction, noted the registered proprietor's rights under Article 40 and Section 26(1) of the Land Registration Act, and recommended his joinder in ELC E015 of 2020 under Order 1 Rule 10(2). The Originating Summons was struck out with costs.

Key legal issues

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01

Whether the Originating Summons offends Section 34 of the Civil Procedure Act and Order 22 Rule 6 of the Civil Procedure Rules

Holding

Yes. The core of the dispute is enforcement of the charging, injunctive and inhibition orders issued in ELC E015 of 2020; issues relating to execution must be determined by the court that issued them, so this court lacks jurisdiction.

Reasoning

The Applicant admittedly obtained a charging order and injunctive/inhibition orders in ELC E015 of 2020, and now challenges the subsequent transfer of the suit property as effected in breach of those orders. Although substantive ownership issues arise, they are inextricably linked to the alleged violation of the earlier court's orders. Entertaining the suit here would risk conflicting orders; the breach and consequential relief should be left to the court that issued the original orders, with the registered owner joined there.

p. 7
02

Whether the Originating Summons falls within Order 37 Rules 1 and 8 of the Civil Procedure Rules

Holding

No. The claim does not concern trust and estate matters under Rule 1, and under Rule 8 applications under the Land Registration Act concerning restraints on dispositions (Part VII) such as inhibitions fall to be made where the executing court sits; the court found the objection well founded notwithstanding.

Reasoning

Order 37 Rule 1 applies to executors, administrators, trustees, creditors or persons claiming through a deceased person or as cestui que trust - not the issues here. Rule 8 governs applications under the Land Registration Act other than Part VII and Part VIII; Part VII deals with restraints on dispositions including the inhibitions sought. The court nonetheless found the summons barred by Section 34 and struck it out.

p. 8
03

Protection of the rights of the registered proprietor who was not a party to the original proceedings

Holding

Any determination touching on the validity of the 3rd Respondent's title must be made in proceedings where he is accorded a fair hearing; the appropriate course is joinder in ELC E015 of 2020.

Reasoning

Article 40 of the Constitution protects property rights and Section 26(1) of the Land Registration Act makes registered title prima facie evidence of ownership, defeasible only on proof of fraud or unlawful acquisition. Order 1 Rule 10(2) permits joinder of parties at any stage. The registered owner should therefore be joined in ELC E015 of 2020 to be heard on the circumstances of his purchase and any breach, preserving the integrity of the original proceedings.

p. 7

Legal principles established

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  • The proper forum for determining questions relating to the execution, discharge or satisfaction of a decree or order is the court that issued it, unless there has been a transfer of the decree/order
  • A preliminary objection must be a pure point of law raised on the assumption that all facts pleaded by the other side are correct

Court orders

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  1. 1.The Preliminary Objection dated 15th April, 2025 is upheld and the court declines jurisdiction over the Originating Summons
  2. 2.The Originating Summons dated the 17th February, 2025 is struck out with costs
Jurisdiction invoked
Not expressly invoked; objection taken under Section 34 of the Civil Procedure Act and Order 22 Rule 6 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "CM Advocates LLP v Cole & Moikobu (Sued as the Administrators of the Estate of Josephine Eleanor Moikobu) & 3 others (Land Case (Originating Summons) E009 of 2025) [2025] KEELC 6583 (KLR)", Case Analysis (2025). Originating Summons dated 17th February, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6583/eng@2025-09-30

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