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ELCPartially AllowedMiscellaneous Application (Notice of Motion dated 22/11/2017)

Francis Mwangi Kimani v Daniel Kimani Njihia [2019] KEELC 4828 (KLR)

Environment and Land Court
29 January 2019
BEB M Eboso
648 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A land inhibition tied to a dismissed lawsuit must be removed — courts will not punish applicants for minor procedural missteps.

What this practically means

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Executive summary

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The applicant, Francis Mwangi Kimani, moved the Environment and Land Court by notice of motion dated 22/11/2017 seeking removal of an inhibition registered against Title Number Loc.1/Mukarara/960 and costs. The inhibition had been registered to protect the respondent's interest pending the hearing and determination of Nairobi HCCC No 6085 of 1990 (now ELC 6085 of 1990). That suit was dismissed on 7/6/2006, and the respondent's attempts to appeal to the Court of Appeal and the Supreme Court were also dismissed. The applicant contended the inhibition no longer served any purpose. The respondent opposed the application as an abuse of process, arguing that it should have been filed within the dismissed suit, and that removal of a caution or inhibition ought to be commenced by plaint or, as counsel argued at the hearing, by originating summons. The court held that the land registrar ought to have vacated the inhibition upon being served with the decree showing dismissal of the suit, and that while an application within the dismissed suit was the ideal mechanism, the procedural misstep was not fatal, no unanticipated prejudice to the respondent having been demonstrated. Relying on Article 159 of the Constitution, the court granted prayer (a), removing the inhibition, and made no order as to costs. Judgment delivered at Nairobi on 29 January 2019 by B M Eboso, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the inhibition registered against Title Number Loc.1/Mukarara/960 should be removed given that the suit it protected was heard and dismissed
  2. 2.Whether the applicant's chosen procedure (a miscellaneous notice of motion rather than an application within the dismissed suit or an originating summons/plaint) was fatal to the application

Key legal issues

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01

Whether failure to file the application within the dismissed suit, or by originating summons/plaint, was fatal

Holding

No - the procedural objection did not defeat the application, since Article 159 of the Constitution guards against reliance on technicalities and no unanticipated prejudice was demonstrated

Reasoning

The court acknowledged that the ideal course was to file a motion within the dismissed suit, and that a removal of caution/inhibition may ideally be by plaint or originating summons. However, the objection was purely procedural, no prejudice to the respondent was shown, and Article 159 of the Constitution required the court to do substantive justice rather than dismiss on technical grounds.

p. 1
02

Whether an inhibition whose underlying suit has been heard and dismissed should remain on the register

Holding

No - the inhibition was registered only to preserve the suit property pending determination of HCCC No 6085 of 1990, which was dismissed, so it no longer served any purpose

Reasoning

It was common ground that the inhibition protected the respondent's interest pending the hearing and determination of Nairobi HCCC No 6085 of 1990, which was dismissed on 7/6/2006, with appeals to the Court of Appeal and Supreme Court also dismissed. The inhibition therefore served no useful purpose and ought to be vacated.

p. 1

Legal principles established

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  • A party should not be defeated by procedural technicalities where substantive justice can be done, per Article 159 of the Constitution
  • A land registrar ought to vacate an inhibition upon being served with a decree showing the suit it protected has been determined

Court orders

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  1. 1.The order of inhibition registered against Title Number Loc.1/Mukarara/960 is removed (prayer (a) of the Notice of Motion dated 22/11/2017 granted)
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

BE
majority

Wrote the judgment

Jurisdiction invoked
Article 159 of the Constitution of Kenya, 2010 (overriding objective against technicalities); inherent jurisdiction of the Environment and Land Court over land matters

Relief refused

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Costs of the application

The court declined to award costs, making no order as to costs despite prayer (b)

p. 1

Costs

No order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Article 159 of the Constitution provides appropriate safeguard against reliance on technicalities to defeat substantive justice.
p. 1substantive justice over procedural technicalities
the land registrar should have vacated the inhibition upon being served with the decree of the court showing that Nairobi HCCC No 6085/1990 (now Nairobi ELC 6085/1990) was dismissed.
p. 1duty of land registrar on receipt of decree
The application is accordingly granted in terms of prayer (a). There shall be no order as to costs.
p. 1final orders

Issues in the judgment

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minor

The judgment gives inconsistent case numbers for the underlying suit, referring to it as HCCC No 6085 of 1990 in places and HCCC No 6088 of 1990 in another passage

minor

At the hearing the applicant is recorded as having 'urged the court to dismiss the application' although he was the applicant seeking the orders, which appears to be an error in the judgment

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, "Francis Mwangi Kimani v Daniel Kimani Njihia [2019] KEELC 4828 (KLR)", Case Analysis (2019). Miscellaneous Application (Notice of Motion dated 22/11/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4828/eng@2019-01-29

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