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ELCDismissedELCOS 9 of 2017

Masero v Kerario (Environment and Land Case 9 of 2017) [2026] KEELC 4647 (KLR)

Environment and Land Court
20 July 2026
2,724 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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court ruled it cannot lift a land prohibition registered by a different court — you must apply to whichever court originally made the order.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

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Executive summary

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This ruling of the Environment and Land Court at Migori (Nyagaka, J) determined a Notice of Motion dated 16th September 2024 brought by the Defendant, Robert Nyaitati Masero, seeking lifting of a prohibition registered against L.R. No. Bukira/Bwisaboka/653 on 12th September 2011. The Applicant, administrator of the Estate of Nyaitati Masero, argued that the prohibition was intended to hold the position pending determination of succession-related litigation which had now been finalized in his favour, and that the prohibition should be lifted to enable distribution of the Estate. The Respondent (the Plaintiff in the adverse-possession suit) opposed, pointing to conditional stay orders of 7th May 2025 pending his appeal, non-compliance with the stay conditions by the Applicant, and prejudice to the pending appeal. The Court framed a threshold question of jurisdiction: whether it had power to lift a prohibition it did not issue. Relying on the Motor Vessel 'Lillian S' jurisdiction principle and Section 70 of the Land Registration Act, the Court found that cancellation of an inhibition lies only with the court that made it or an appellate court on appeal or review. The prohibition predated the 2017 suit by almost six years, and the Applicant had produced no copy of the order creating it; his annexures were rulings in separate proceedings inconsistent with his pleadings. The application was dismissed, each party to bear its own costs, without prejudice to the Applicant's right to apply before the court that made the order or to proceed under Section 70(b) before the Land Registrar.

Questions the Court framed

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

  1. 1.Whether this Court has power to lift a prohibition registered against L.R. No. Bukira/Bwisaboka/653 on 12th September, 2011, which it did not issue.
  2. 2.Who to pay costs of the application.

Key legal issues

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01

Whether the Environment and Land Court has power to lift a prohibition it did not issue

Holding

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.

Reasoning

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.

p. 11
02

Effect of inconsistency between pleadings and annexures

Holding

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.

Reasoning

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.

p. 10

Legal principles established

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  • 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

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  1. 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. 2.Each party shall bear its own costs of the application.
  3. 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.

The bench

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

majority

Wrote the judgment

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

Relief refused

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Lifting/removal of the prohibition registered on L.R. No. Bukira/Bwisaboka/653 on 12th September, 2011

The Court lacks jurisdiction: the order creating the prohibition was not made by this Court, no copy of the order was produced, and cancellation of an inhibition lies only with the court that made it.

p. 14

Costs

Each party shall bear its own costs of the application.

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.

It is trite that jurisdiction is everything, and a court that acts without it, however well-intentioned, acts in vain, it must down its tools the moment it finds that it is not seized of jurisdiction.
p. 7Jurisdiction - downing of tools
In the absence of the order itself, and absent any demonstration that the order was made by this Court I am unable to find that this Court has the power to grant the orders sought.
p. 11Lack of power to lift a prohibition the Court did not issue
The upshot of the foregoing is that this Court lacks power to grant the orders sought. The application is hereby then dismissed.
p. 14Disposition
Each party shall bear its own costs of the application.
p. 14Costs order
This order is made without prejudice to the Applicant's right to apply, before the court that made the order of 12 th September, 2011 (once ascertained and its ruling or order produced therein), for the discharge or cancellation of the said prohibition, or proceed under Section 70(b) of the Land Registration Act before the Land Registrar upon proof of the occurrence of the event, if any, stated in the order.
p. 14Preservation of alternative remedies

Issues in the judgment

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minor

Paragraph numbering is duplicated and inconsistent - paragraphs 6, 7, 8 and 10 appear twice under different headings with different content.

minor

The judgment records that the ruling was delivered on 20th July 2026, yet the Respondent swore a Replying Affidavit on 27th February 2026 and filed submissions dated 20th March 2026 - dates internally consistent only if the ruling date is correct; no contradiction on the face of the document.

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, "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.