https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4970

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELCEPOS CASE NO. E004 OF 2024** **ANNAH MUNYIVA KIMUYU::::::::::::::::::::::::::::::::::::::1ST APPLICANT** **MARK MUMO:::::::::::::::::::::::::::::::::::::::::::::::::::::::::2ND APPLICANT** **JOYCE MWIKALI::::::::::::::::::::::::::::::::::::::::::::::::::::3RD APPLICANT** **VERSUS** **PETER WAMBUA NDOLA::::::::::::::::::::::::::::::::::::::1ST RESPONDENT** **LAND REGISTRAR MACHAKOS::::::::::::::::::::::::::::2ND RESPONDENT** **RULING** The originating Summons was brought under Articles 40, 159 of the Constitution, Sections 73(1) of the Land Registration Act of 2012, Sections 1A, 1B, 3, 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, and Order 37 Rule 8 of the Civil Procedure Rules 2010 by the Applicant who is seeking the following Orders: 1. That this court do certify this application as urgent, 2. That the Land Registrar, Machakos Land Registry be ordered to remove the caution lodged against Land Title Number Mavoko Town Block 3/ 2907, by one Peter Wambua Ndola on 20th December, 2023; 3. That costs of this application be provided for. It application is supported by the annexed affidavit of Annah Munyiva Kimuyu on the following grounds that the suit property known as Mavoko Town Block 3/2907 is registered under the names of Annah Munyiva Kimuyu, Mark Mumo Kimuyu and Joyce Mwikali Kimuvu. That Respondent registered a caution with the Machakos land registry on 20th December, 2023 against Mavoko Town Block 3/ 2907 for the alleged reason that he claimed purchaser's interest. That the Applicant made an application dated 24th July 2024 to the Land Registrar at Machakos to remove the caution entered against Mavoko Town Block 3/2907 by the Respondent but the same application was declined. That the Applicant herein does not know the Respondent, is unaware of any claimed interests in Mavoko Town Block 3/2907 by the 1st Respondent. That it is just and fair that the rising orders sought herein be issued to protect the integrity of the tittle to the parcel of land herein. The 1st Respondent submitted that the caution was lawfully lodged pursuant to section 71 of the Land Registration Act 2012 to protect the purchasers interest arising from a valid and enforceable land sale agreement between the parties. That he took possession and in 2016 he put up a dwelling house and began farming activities. In 2018 he sold two acres from his 6 acres to a third party. That the Seller died in July 2019 before they could conclude the transaction. That the Applicants thereafter obtained letters of administration and transferred the land into their joint names. Be that as it may, Courts have taken the position that substantive orders cannot be issued in Applications. Granting the orders sought will indeed conclude this matter. This is the position that was adopted in Witmore Investment Limited vs County Government of Kirinyaga & 3 Others (2016) eKLR wherein it was held; *“So where a party such as an applicant herein seeks an order that in effect appears to resolve with finality an issue in controversy or a contested issue, the application ceases to be interlocutory and it is a misconception to describe it as such. If the applicant wanted to move this court for a final resolution of the issues in controversy raised in the application, it should have moved this court properly in the manner provided by law.”* I concur with the Respondents that this matter can only be concluded through a full trial and not by an application. I find that this application is not merited and is dismissed with costs. It is so ordered. **DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 28TH DAY OF JULY 2026.** **N.A. MATHEKA** **JUDGE**