[2009] KEHC 711 (KLR)
The court held that the application was incompetent because a motion cannot be used to originate a suit for the removal of a caution. The proper procedure, as set out in the Civil Procedure Act and Rules, requires that such proceedings be commenced by plaint, originating summons, petition, or other prescribed...
Source-derived case information.
- Citation
- [2009] KEHC 711 (KLR)
- Parties
- Applicant: Abdul Rahim Yusuf; Respondent: James Olero Lieta; Respondent: The Land Registrar Migori/Rongo
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 48 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Application
- Outcome
- application struck out as incompetent with costs
- Judges
- AO Muchelule
- Legal Topics
- Removal of Caution, Procedure for Commencing Suit, Registered Land Act, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdul Rahim Yusuf
Applicant
James Olero Lieta
Respondent
The Land Registrar Migori/Rongo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Application
Legal Issues
- 1 Whether a motion can be used to commence proceedings for removal of a caution under the Registered Land Act.
- 2 Whether the application as filed is competent before the court.
Ratio Decidendi
The court held that the application was incompetent because a motion cannot be used to originate a suit for the removal of a caution. The proper procedure, as set out in the Civil Procedure Act and Rules, requires that such proceedings be commenced by plaint, originating summons, petition, or other prescribed manner, not by motion. Since the applicant failed to follow the prescribed procedure, the application was struck out with costs.
Court Disposition
application struck out as incompetent with costs
Orders
- The application is struck out with costs to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Miscellaneous Application 48 of 2009
ABDUL RAHIM YUSUF………………………………………. APPLICANT
-VERSUS-
JAMES 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 this7th day of October2009
A.O.MUCHELULE
JUDGE
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