https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4647

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MIGORI** **ELC CASE NO. 9 OF 2017 (O.S)** **ROMAN GABERI KERARIO......................PLAINTIFF/RESPONDENT** **-VERSUS-** **ROBERT NYAITATI MASERO....................DEFENDANT/APPLICANT** **RULING** (On the Notice of Motion dated 16th September, 2024) **A. BACKGROUND** 1. This suit was commenced by way of Originating Summons dated 2nd February, 2017. By it the Plaintiff sought against the Defendant, among other reliefs, a declaration that his possession of land reference No. **Bukira/Bwisaboka/3886** was adverse to the Defendant’s title. By a Judgment delivered on 20th February, 2024, this Court having found that the Plaintiff had not sufficiently proved his claim of adverse possession over the suit land dismissed the Plaintiff's suit in its entirety, with costs to the Defendant. 2. The Defendant claimed he was the administrator of the Estate of his late father, Nyaitati Masero Nyaitati.The Estate comprises L.R. No. Bukira/Bwisaboka/653, the parent parcel from which the suit land and other parcels were subsequently subdivided. 3. It is the Defendant's case that a prohibition was registered against L.R. No. Bukira/Bwisaboka/653 on 12th September, 2011. It was intended to hold the position pending the determination of litigation touching on the said parcel, being **Migori Succession Cause No. 176 of 2008, Kisii High Court Misc. Application No. 55 of 2010, Migori Misc. Succession Application No. 10 of 2015,** and the present suit. 4. It is on this basis that the Defendant filed the Notice of Motion dated 16th September, 2024. He brought it under Order 51 as read with Order 22 Rule 28(5), 29(1), (2) and (3) and Section 3A of the Civil Procedure Act. He sought that the prohibition registered on L.R. No. **Bukira/Bwisaboka/653** on 12th September, 2011 be lifted, and for costs of the application. **B. THE APPLICANT'S CASE** 1. The application was supported by the Affidavit of the Applicant, ROBERT NYAITATI MASERO. He swore it on 16th September, 2024. No written submissions on the record that were filed in support of the application appear. The Applicant's case, as brought out in the Notice of Motion and the supporting affidavit, is that there has been litigation over land parcel **Bukira/Bwisaboka/653** for a long time. This constitutes Migori Succession Cause No. 176 of 2008, Kisii High Court Misc. Application No. 55 of 2010, Migori Misc. Succession Application No. 10 of 2015, and the present suit. 2. The prohibition registered on the parcel on 12th September, 2011 was intended only to hold the position pending determination of the said litigation. The litigation has now been finalized in his favour. He evidenced this fact by the annexures to his affidavit. These were annexture **RNM1**, being copies of the Grant of Letters of Administration and the Ruling in Migori Succession Cause No. 176 of 2008; **RNM2**, a copy of the ruling in Kisii High Court Misc. Application No. 55 of 2010; **RNM3**, a copy of the Ruling in Migori High Court Misc. Application No. 10 of 2015; and **RNM4**, a copy of the Judgment of this Court delivered on 20th February, 2024 in the present suit. 3. He contended that it is in the interest of justice that the prohibition be lifted to enable him, as the Administrator, distribute the Estate of his late father to the rightful beneficiaries, as litigation ought to come to an end. 4. I pause to note, on a close perusal of the annexures actually placed before the Court, that the document marked **RNM2** is, on its face, a Ruling of the High Court at Kisii in Misc. Application No. 237 of 2011 (In the Matter of the Estate of Masero Nyaitati Masero (Deceased) and in the Matter of Revocation of Grant of Letters of Administration), delivered on 21st February, 2013. It is not a ruling in ***"Kisii High Court Misc. Application No. 55 of 2010"*** as deposed to in the grounds and affidavit. That ruling, in turn, makes reference to cautions placed on the suit title on 22nd December, 2009, 29th December, 2009 and 11th March, 2012. None of these bears the date of 12th September, 2011 pleaded as the date of registration of the prohibition presently sought to be lifted. There is **NONE** among the annexures **RNM1** to **RNM4** which is a copy of the actual order, ruling, decree or register entry by which the prohibition of 12th September, 2011 was placed on the register of L.R. No. **Bukira/Bwisaboka/653.** **C. THE RESPONDENT'S CASE** 1. The Respondent opposed the application by way of a Replying Affidavit he swore on 27th February, 2026. Further, he filed, submissions dated 20th March, 2026. He described them as being "in support of Notice of Motion application dated 29/09/2025 and in opposition to the application dated 16/09/2024." From the Replying Affidavit the Respondent's case is that this Court had, by a Ruling dated 7th May, 2025, issued conditional orders by which it stayed execution of the Judgment of 20th February, 2024 pending his appeal. It is not in dispute that the applicant has preferred an appeal against the Judgment herein. The conditions set by the Court, for the grant of the stay of execution were not complied with. This was because, contrary to what had been recorded in the proceedings of 7th May, 2025, it was the Applicant who was tasked with commencing the process of opening the joint interest-earning account. The Applicant has to date failed to do so despite correspondence from the Respondent's advocates calling upon him to initiate the process or, alternatively, to consent to the security being deposited in court. 2. Having been so frustrated, the Respondent filed the application dated 29th September, 2025 in which he sought leave to extend the stay orders. He also sought for an order that the security be deposited in court instead of the joint account, on account of the Applicant's failure to cooperate. 3. He added that it is only after delaying the account-opening process that the Applicant filed the present application dated 16th September, 2024 seeking to execute upon, and disturb, orders that this Court had already made. That notwithstanding that, this Court is not *functus officio* as regards the execution process and retains discretion to deal with applications before it on the facts placed before it. he added that the prejudice likely to be occasioned to the Respondent by a grant of the orders sought in the application herein is considerable, as it would render his pending appeal nugatory, whereas no equivalent prejudice would be occasioned to the Applicant, since the conditional stay already in place adequately protected his interests pending compliance. Accordingly, he prays that the application be dismissed with costs. **D. ISSUE FOR DETERMINATION** 1. Having considered the application, the supporting affidavit, the Replying Affidavit and the whole record, I am of the humble view that the germane issue for determination this Court is obliged to resolve before venturing into the merits is: 2. *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.* 3. *Attendant to the above is the issue of who to pay costs of the application.* 4. The determination of the first issue revolves around jurisdiction. This is because the order that led to the placement of the prohibition on the land in issue which is now sought to be lifted is not before me by way of appeal, review or other process duly recognized by law. 5. 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. This was stated in the locus classicus by the Court of Appeal in **The Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1**. In it Nyarangi, J.A. held that a court's power to act is entirely dependent on it having jurisdiction over the matter. He held further that jurisdiction is everything and that without it a court must down its tools at once. The Learned Judge of Appeal further observed that where a court holds the opinion that it lacks jurisdiction over a matter, there is no basis upon which it may proceed, however far the proceedings may have gone. 6. This principle was restated in **In re estate of Nyaitati Masero (Deceased) [2016] KEHC 1349 (KLR)**, where the Court declined jurisdiction upon finding that the dispute before it properly fell within the preserve of the Environment and Land Court under Article 162(2) of the Constitution, and held that; *"There remains only one way forward once a Court determines that it is not seized of jurisdiction and that is to accordingly down its tools."* 1. Turning to the facts herein, the prohibition sought to be lifted was registered on 12th September 2011. The instant suit was commenced by Originating Summons dated 2nd February, 2017. That was almost six years after the prohibition was registered. It follows, as a matter of simple chronology, that this Court could not possibly have been the one that made the order of prohibition registered on the suit land in the year 2011. 2. Further, and as already observed at paragraph 5 above, the Applicant has not placed before this Court any copy of the actual order, ruling or register entry by which the prohibition of 12th September, 2011 was registered. The annexures relied upon, being **RNM1** to **RNM4**, are, at best, rulings and a judgment in subsequent and separate proceedings which make reference to, or proceed on the assumption of an already-existing prohibition. None of them is the Originating Summons order itself. Further, none of the annextures disclose the Court that made made it. 3. It is trite law that parties are bound by their pleadings, and that a court can only grant reliefs that flow from, and are supported by, the pleadings and evidence placed before it. This principle was restated by the Court of Appeal in **Galaxy Paints Company Limited v Falcon Guards Limited [2000] eKLR**. In it the Court held that a party is bound by its pleadings. He cannot be allowed to canvass, or be granted, a case or a remedy not founded on the pleadings before the court. 4. In the present case, the Applicant pleaded, at ground 2 of the Notice of Motion and paragraph 4 of his Supporting Affidavit, he deponed that the prohibition was registered on 12th September, 2011. He identified, at paragraph 4 of the affidavit, four suits including "Kisii High Court Misc. Application No. 55 of 2010" as the litigation on account of which the prohibition was placed. Yet, as already noted, the annexure relied upon to prove that very suit, annexture **RNM2**, is in fact a ruling in an entirely different matter, being Misc. Application No. 237 of 2011. It touches on cautions registered on dates that do not correspond to the pleaded date of 12th September, 2011. 5. A party who pleads a specific factual basis for the order he seeks cannot found an argument on an order or annexures which, on their face, do not correspond to what was pleaded. The inconsistency between the Applicant's pleadings and the annexures relied upon to prove them is, in itself, sufficient to disentitle him to the orders sought, quite apart from the jurisdictional bar already identified above. 6. 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. To do so would be to purport to vary or discharge an order whose author, terms and conditions for discharge are unknown. In any event, such order was made in proceedings other than the one before me. 7. The applicable statutory framework on prohibitions and/ or inhibitions is found in the Land Registration Act, No. 3 of 2012 (which repealed the relevant statute of the time). Part III thereof provides, under **Section 68 — Power of the court to inhibit registered dealings,** as follows:*"(1) The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.* *(2) A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge affected, shall be sent to the Registrar, who shall register it in the appropriate register."* **Section 69 — Effect of inhibition** *"So long as an inhibition remains registered, any instrument that is inconsistent with the inhibition shall not be registered."* **Section 70 — Cancellation of inhibition** *"The registration of an inhibition shall not be cancelled except in the following cases , (a) on the expiration of the time stated in the inhibition; (b) on proof to the satisfaction of the Registrar of the occurrence of an event stated in the inhibition; (c) on the land, lease or charge being sold by a charge, unless such sale is itself inhibited; or (d) by a consequent order of the court."* 1. The Interpretation section of the Act further clarifies that the term "inhibition" *"means an order made under section 68, or a prohibition,"* thereby placing the "prohibition" pleaded by the Applicant squarely within the statutory regime. The equivalent provisions under the now-repealed Registered Land Act (Cap. 300), which was the law in force in September, 2011 when the prohibition in issue was registered, made a similar provision for the placing and cancellation of inhibitions by "the court". 2. It is plain from Section 70(d) of the Act that where an inhibition (or, as here, a prohibition) has been placed "generally until a further order" of the court, its cancellation can only be by "a consequent order of the court". That means an order made by the same court that is seized of the matter in which the order was granted, and not by any court before which the question happens to be raised later. This is consistent with the ordinary rule of practice that 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. 3. My view is fortified by the fact that Section 70 of the Land Registration Act contemplates specific, ascertainable pathways for the cancellation of an inhibition or prohibition. These include, by expiration of the time stated in it, by proof to the Registrar of the occurrence of a stated event, or by a consequent order of the court that made it. None of these pathways can be engaged by this Court without first having before it the instrument that created the prohibition, so that it ascertains its terms, the event or time upon which it was to lapse, and the court (if any) that retains supervisory jurisdiction over it. 4. The upshot of the foregoing is that this Court lacks power to grant the orders sought. The application is hereby then dismissed. 5. This order is made without prejudice to the Applicant's right to apply, before the court that made the order of 12th 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. 6. Each party shall bear its own costs of the application. 7. Orders accordingly. **Ruling Dated, Signed and Delivered virtually via the Teams Platform this 20th day of July 2026**. **HON DR. IUR NYAGAKA,** **JUDGE** **In the presence of,** Kerario Marwa Advocate for the Applicant Abande Advocate for the Respondent