https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3377
Because the caution pre-dated the suit and the matter had already been determined by judgment, the court held that the present suit was not the proper forum to seek vacation of the caution; the applicant had to file a miscellaneous application instead.
Source-derived case information.
- Citation
- [2026] KEELC 3377 (KLR)
- Parties
- Plaintiff: Leonard Kimeu Mwanthi; 1st Defendant: Patrick Kirimi Theophilus; 2nd Defendant: John Nyaga M’Itonga; 3rd Defendant: The Public Trustee Of Kenya
- Court
- Environment and Land Court
- Jurisdiction
- Kenya
- Case Number
- Land Case (Originating Summons) 153 of 2012
- Procedural Posture
- Land Case (originating Summons) / Ruling on Application Dated 23/7/2025 to Vacate Caution
- Outcome
- Application struck out.
- Judges
- ["BM Eboso"]
- Legal Topics
- Caution, Procedure for Removing Caution, Striking Out Application, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Kimeu Mwanthi
Plaintiff
Patrick Kirimi Theophilus
1st Defendant
John Nyaga M’Itonga
2nd Defendant
The Public Trustee Of Kenya
3rd Defendant
Procedural Posture
Land Case (originating Summons) / Ruling on Application Dated 23/7/2025 to Vacate Caution
Legal Issues
- 1 Whether the suit was the proper forum for an order vacating a caution that pre-dated the suit.
- 2 What procedural route should be used to challenge the caution.
Ratio Decidendi
Because the caution pre-dated the suit and the matter had already been determined by judgment, the court held that the present suit was not the proper forum to seek vacation of the caution; the applicant had to file a miscellaneous application instead.
Court Disposition
Application struck out.
Orders
- Application dated 23/7/2025 struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
1 paragraphs
Mwanthi v Theophilus & 2 others (Land Case (Originating Summons) 153 of 2012) [2026] KEELC 3377 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELC 3377 (KLR) Republic of Kenya In the Environment and Land Court at Meru Land Case (Originating Summons) 153 of 2012 BM Eboso, J June 2, 2026 Between Leonard Kimeu Mwanthi Plaintiff and Patrick Kirimi Theophilus 1st Defendant John Nyaga M’Itonga 2nd Defendant The Public Trustee Of Kenya 3rd Defendant Ruling 1.Judgment in this matter was rendered on 3/10/2024 by Yano J. The caution that is the subject matter of the application dated 23/7/2025 pre-dates this suit. 2.Given the above circumstances, this suit is not available as a platform on which to seek an order vacating the caution. The proper procedure is for the applicant to file a miscellaneous application seeking an order vacating the caution. 3.Taking into account the background of the application, the application is hereby struck out with no award of costs. The background is that the plaintiff has not filed a response to the application and has elected to keep the caution in place despite having lost his claim. DATED SIGNED AND DELIVERED AT MERU THIS 2ND DAY OF JUNE, 2026.B M EBOSO [MR]JUDGEIn the presence ofMr Ngeera for the 1st DefendantMr Leonard Mwanthi – Plaintiff- Present in PersonCourt Assistant – Mr. E. Tupet