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ELCStruck OutNot stated in the judgment (Miscellaneous Application dated 28th March 2025)· [2025] KEELC 6328 (KLR)

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)

Environment and Land Court (High Court)
29 September 2025
COChristine Ochieng
1,836 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Applicant advocate, acting for four of six vendors under a sale agreement dated 10th December 2021 over LR No. 209/3271/86 for a purchase price of Kshs.135 million, moved the Court by Notice of Motion dated 28th March 2025 seeking orders compelling the Respondent advocate to produce a statement of account of the escrow account holding the purchase price and directing the bank to add the Applicant as a signatory. The Applicant alleged the purchase price might have been misappropriated, noting the balance appeared to be only Kshs.6,383,172.30. The Respondent opposed, contending the application was not anchored on a suit, that the account was to be in the name of the respective advocates, that the Applicant refused to participate in opening the account, and that completion documents remained outstanding. At the hearing of 30th April 2025 the Respondent raised a Preliminary Objection that a suit cannot be initiated by way of miscellaneous application, and that the dispute, involving interpretation of the sale agreement, belongs to the Commercial Courts. The Respondent relied on Section 19 of the Civil Procedure Act and Order 3 Rule 1(ii) of the Civil Procedure Rules, and on Adala v Anjere and Proto Energy Limited v Hashi Energy Limited, holding that a notice of motion is not recognised as originating process. The Applicant relied on Abdi Abdullahi Somo v Ben Chikamai. The Court held that the dispute required viva voce evidence and ought to have been commenced by plaint; it upheld the Preliminary Objection, struck out the miscellaneous cause as incompetent, and awarded costs to the Respondent. Judgment dated and delivered at Nairobi on 29th September 2025 by Christine Ochieng, Judge.

Key legal issues

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01

Whether a miscellaneous Notice of Motion can found substantive orders in a dispute over a sale agreement

Holding

No - the claim ought to have been commenced by way of a plaint; the miscellaneous cause was incompetent and was struck out

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Preliminary Objection is found merited
  2. 2.The miscellaneous cause is declared incompetent and struck out
  3. 3.Costs awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 19
  • Civil Procedure RulesOrder 3 Rule 1(ii)

Cases cited (9)

  • Bank of Africa Kenya Limited & Another v TSS Investment Limited & 2 Others
    (Civil Appeal E055 of 2022) [2024] KECA 410 (KLR)
  • Wanja & Another v Roothaert
    (Miscellaneous Application E193 of 2021) [2022] KEHC 10255 (KLR)
  • Geoffrey Ndungu Theuri v Law Society of Kenya
    [1988] eKLR
  • Omar Shureie v Marian Rahse Yafar
    [2020] KECA 492 (KLR)
  • Seven L General Trading Ltd & Another v Karu
    (Miscellaneous Application 42 of 2024) [2024] KEHC 3979 (KLR)
  • Abdi Abdullahi Somo v Ben Chikamai & 2 Others
    [2016] eKLR
  • Adala v Anjere
    [1988] eKLR
  • Proto Energy Limited v Hashi Energy Limited
    (2019) eKLR
  • Tatecoh Housing and Co-op Sacco Ltd v Qwetu Sacco Ltd
    (2021) eKLR
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)

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, "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.