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ELCAllowedNotice of Motion dated 25th June 2014· [2015] KEELC 655 (KLR)

Itrade Company Ltd v Mwangi & another (Miscellaneous Case 225 of 2014) [2015] KEELC 655 (KLR)

High Court of Kenya
13 February 2015
MGMary M. Gitumbi
1,421 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Applicant, Itrade Company Limited, moved the court by Notice of Motion dated 25th June 2014 seeking removal of a restriction registered against its property, Ruiru East Block 1/1490, which it had purchased on 14th December 2012 for Kshs. 12,500,000/- from David Mwangi Kibunja after a search revealed no encumbrances. The Applicant, an estate developer, commenced construction and sold units off-plan, but halted the project and refunded deposits after prospective purchasers' searches revealed the restriction. The 1st Respondent, Jane Mukami Mwangi, opposed, asserting she had registered a caution in 2011 which was improperly removed, that the property was the subject of part-heard proceedings in HCCC No. 2 of 2012, and that the transfer to the Applicant was fraudulent. The court framed one issue: whether the restriction should be lifted. Relying on sections 76(1), 77(1) and 78(2) of the Land Registration Act, the court found that the Registrar had neither given the Applicant a hearing before entering the restriction nor notified it afterwards, acting only on the 1st Respondent's lawyers' letter, contrary to the rules of natural justice. The court allowed the application, removed the restriction, and awarded costs to the Applicant. Judgment was delivered at Nairobi on 13th February 2015 by Mary M. Gitumbi, Judge.

Key legal issues

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Whether the restriction entered against the suit property should be lifted

Holding

The restriction was removed because the Applicant, as affected proprietor, was neither heard before entry of the restriction nor notified of it afterwards, contrary to sections 76(1) and 77(1) of the Land Registration Act and the rules of natural justice.

Reasoning

The Registrar acted only on the 1st Respondent's side, entering the restriction on the strength of a letter from her lawyers without involving the Applicant. No hearing was accorded despite the Applicant's attempts to engage the Registrar, and no statutory notice of the restriction was issued. The Applicant only discovered the restriction when prospective purchasers ran searches, halting the development and causing financial loss. Section 78(2) empowers the court, on application by an affected proprietor, to order removal of a restriction.

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Legal principles established

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  • The Registrar must give the affected proprietor an opportunity to be heard before entering a restriction and must notify the proprietor of any restriction entered under sections 76(1) and 77(1) of the Land Registration Act.

Court orders

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  1. 1.Removal of the restriction registered against the suit property Ruiru East Block 1/1490
  2. 2.Costs of the application awarded to the Applicant

Authorities

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Legislation

  • Land Registration Act, No. 3 of 2012Section 76(1)
  • Land Registration Act, No. 3 of 2012Section 77(1)
  • Land Registration Act, No. 3 of 2012Section 78(2)
Jurisdiction invoked
Section 78(2) of the Land Registration Act, No. 3 of 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Itrade Company Ltd v Mwangi & another (Miscellaneous Case 225 of 2014) [2015] KEELC 655 (KLR)", Case Analysis (2015). Notice of Motion dated 25th June 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/655/eng@2015-02-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.