REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII Civil Miscellaneous Application 48 of 2009 ABDUL RAHIM YUSUF………………………………………. APPLICANT -VERSUSJAMES OLERO LIETA…………………………………1ST RESPONDENT THE LAND REGISTRAR MIGORI/RONGO………..2ND RESPONDENT RULING The applicant has in this Motion filed on 26/2/2009 requested for an order that the caution lodged by the 1st respondent on 4/4/2008 against parcel of land no. Suna East/Wasweta1/11904 be removed. The Land Registrar Migori/Rongo was brought with the application because he is the one who registered the caution. The Motion was shown to be brought under sections 133(1), 2(a) and (b) of the Registered Land Act Cap 300 and order 50 rule, of the Civil Procedure Rules. A dispute regarding claim over the land between the applicant and 1st respondent has arisen. It is the dispute that led to the said caution. If the applicant was aggrieved by the caution and he could not persuade the Land Registrar to remove it he was supposed to file a suit in Court for the Court to order the removal. Under sections 2 and 19 of the Civil Procedure Act such suit has to be commenced in any manner that has been prescribed by the rules. It may be commenced by Plaint, Originating Summons, Petition or in any other manner. A Motion can only be filed in an existing suit. It cannot originate a suit. The application is incompetent and is struck out with costs. Dated, signed and delivered at Kisii this 7 th day of October2009 A.O.MUCHELULE JUDGE
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7/10/2009 Before Hon. A.O.Muchelule-Judge Court clerk-Mongare Mr. Mbicha for applicant COURT: ruling in open court. A.O. MUCHELULE JUDGE 7/10/2009
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