Amollo (Suing as the administrator of the Estate of Joseph Olale Amolo - Deceased) v Olale & 5 others (Environment and Land Miscellaneous Application E029 of 2025) [2026] KEELC 2834 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a caution-removal application filed by Notice of Motion, ruling it must start with a plaint.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Preliminary Objection is merited
- 2.Who to bear costs of the objection and application, if any
Key legal issues
#Whether a caution-removal application commenced by Notice of Motion is properly before the court
The preliminary objection was upheld and the Notice of Motion was struck out, as proceedings for removal of a caution should be commenced by plaint or originating summons under Section 71 of the Land Registration Act and Order 37 Rule 5 of the Civil Procedure Rules
The court applied Mukisa Biscuits on the nature of preliminary objections, set out Sections 71 and 73(1) of the Land Registration Act and Order 37 Rule 5 of the Civil Procedure Rules, and followed Chemjor v Kisera which held that an action for removal of a caution must be commenced by plaint. Although the Rules do not bar other mechanisms anchored in statute, the applicable provisions here being Section 71, the prescribed mode of institution governed, so the objection merited.
Whether the objection that no prior application was made to the Land Registrar under Section 73(1) is a pure point of law
Not definitively determined; the court upheld the objection on the mode-of-commencement ground
The applicant argued that whether an application was made to the Registrar before instituting proceedings is a factual issue requiring interrogation, and that the three modes of removal under Section 73 are not sequential. The court did not resolve this limb separately, instead upholding the objection on the procedural ground relating to improper institution of the suit by Notice of Motion.
Legal principles established
#- A preliminary objection consists of a pure point of law which, if argued as a preliminary point, may dispose of the suit
- Suits may be instituted by mechanisms other than a plaint where anchored on a relevant statutory provision, but where the applicable statutory provisions prescribe the mode of institution, the prescribed mode prevails
Court orders
#- 1.The Notice of Motion Application dated 24th August 2025 is struck out with costs to the Respondents who raised the Preliminary Objection
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Land Registration Act (Cap. 300), Sections 71, 73(1) and 78(1)
Relief refused
#Applicant's application for removal of caution by Notice of Motion
Proceedings ought to have been instituted by plaint or originating summons under the applicable statutory framework; the preliminary objection was merited
Costs
Costs of the application and preliminary objection to the Respondents who raised the Preliminary Objection
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the Notice of Motion Application dated 24th August 2025 is struck out with costs to the Respondent who raised the parties of who raised the Preliminary Objection.
It is therefore my considered view that an action for the removal of a caution needs to be commenced by way of a plaint in which suit the plaintiff needs to prove on a balance of probabilities why the defendant has no right to place the caution on his title
A caution may be withdrawn by the cautioner or removed by order of the court or, subject to subsection (2), by order of the Registrar.
Issues in the judgment
#Internal inconsistency in date: ruling delivered 13th May 2026 yet premised on an objection dated 12th November 2025 - date delivery is later than filing, which is normal, but the judgment text also inconsistently refers to the objection raising grounds about an application of 24th August 2025, a date range discrepancy worth noting
Drafting error/typo in the final order regarding who is awarded costs
Statutory references inconsistently attribute Sections 71 and 73 to the 'Land Act' and 'Land Registration Act' interchangeably, though the citation Cap. 300 indicates the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amollo (Suing as the administrator of the Estate of Joseph Olale Amolo - Deceased) v Olale & 5 others (Environment and Land Miscellaneous Application E029 of 2025) [2026] KEELC 2834 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2834/eng@2026-05-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.