Masero v Kerario (Environment and Land Case 9 of 2017) [2026] KEELC 4647 (KLR)
The bottom line
#A Migori court ruled it cannot lift a land prohibition registered by a different court — you must apply to whichever court originally made the order.
What this practically means
#Executive summary
#Key legal issues
#Whether the Environment and Land Court has power to lift a prohibition it did not issue
It does not. Under Section 70 of the Land Registration Act, cancellation of an inhibition/prohibition lies only with the court that made it, and absent the order itself or proof that this Court made it, the Court must decline jurisdiction.
The prohibition was registered on 12th September 2011, almost six years before the Originating Summons of 2nd February 2017, so this Court could not have made it. The Applicant produced no copy of the order or register entry creating the prohibition; the annexures were rulings and judgments in separate proceedings which merely assumed its existence. Cancellation under Section 70(d) requires a consequent order of the court that made the inhibition. Acting otherwise would be to vary an order whose author and terms are unknown.
Effect of inconsistency between pleadings and annexures
A party who pleads a specific factual basis cannot rely on annexures that on their face do not correspond to the pleading; the inconsistency alone disentitles him to the orders sought.
The Applicant pleaded that the prohibition was registered on 12th September 2011 pursuant to, among others, Kisii High Court Misc. Application No. 55 of 2010. Yet annexure RNM2 was a ruling in an entirely different matter, Misc. Application No. 237 of 2011, referring to cautions on dates that did not correspond to the pleaded date. Citing Galaxy Paints v Falcon Guards, the Court held a party is bound by pleadings and cannot canvass a remedy not founded on them.
Legal principles established
#- Only the court which made an order, or an appellate court exercising its powers on appeal or review, has jurisdiction to set aside, vary, discharge or cancel that order.
- A court that lacks jurisdiction must down its tools at once, however far the proceedings may have gone.
- Cancellation of an inhibition under Section 70(d) of the Land Registration Act must be by a consequent order of the court seized of the matter in which the order was granted.
Court orders
#- 1.The Notice of Motion dated 16th September, 2024 seeking lifting of the prohibition registered on L.R. No. Bukira/Bwisaboka/653 on 12th September, 2011 is dismissed.
- 2.Each party shall bear its own costs of the application.
- 3.The dismissal is without prejudice to the Applicant's right to apply before the court that made the order of 12th September, 2011 for its discharge or cancellation, or to proceed under Section 70(b) of the Land Registration Act before the Land Registrar.
- Jurisdiction invoked
- Sections 3A, Order 22 Rules 28(5), 29(1), (2) and (3) and Order 51 of the Civil Procedure Act; Land Registration Act, No. 3 of 2012, Sections 68-70
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masero v Kerario (Environment and Land Case 9 of 2017) [2026] KEELC 4647 (KLR)", Case Analysis (2026). ELCOS 9 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4647/eng@2026-07-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.