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ELCDismissedMiscellaneous Application dated 20th July 2017· [2017] KEELC 714 (KLR)

John Kamau Kinyanjui v Thika District Land Registrar [2017] KEELC 714 (KLR)

Environment and Land Court
20 December 2017
LGL. Gacheru
1,173 words in judgment
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The bottom line

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A Kenyan court refused to remove a land restriction because the owner didn't show the Green Card or involve the person who placed it.

What this practically means

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Executive summary

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The Applicant, John Kamau Kinyanjui, filed a Miscellaneous Application dated 20th July 2017 against the Thika District Land Registrar seeking lifting of a restriction registered on 1st December 2011 against title No. Ruiru/Kiu Block 2/2616, of which he is the registered proprietor. He averred that he purchased the property from one Gitu Makumi in 2004, paid in full, and that the restriction was lodged without justification or communication of reasons, remaining on the title for over five years with no investigation or pending case involving the property. The application was anchored on Section 78(2) of the Land Registration Act, 2012 and Section 3A of the Civil Procedure Act. The Respondent filed no Replying Affidavit. Justice L. Gacheru, delivering the ruling at Thika on 20th December 2017, held that while the court has discretion under Section 78(2) to order removal of a restriction, that discretion must be exercised judicially. The Applicant produced only an official search showing registration and the restriction, but not the Green Card that would reveal why the restriction was placed and on whose application. Given that restrictions under Section 76(1) of the Land Registration Act serve to prevent fraud or improper dealing, the court declined to remove the restriction without notice to the person who applied for it. The court further found that the Applicant had failed to enjoin the restrictor as a respondent, and that allowing removal would condemn that person unheard, contrary to the rules of natural justice. The application was dismissed entirely with costs in the cause.

Key legal issues

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01

Whether the Applicant established entitlement to removal of the restriction under Section 78(2) of the Land Registration Act

Holding

The application was not merited because the Applicant failed to produce the Green Card showing why and by whom the restriction was placed, and failed to enjoin the restrictor as a respondent

Reasoning

Section 78(2) gives the court discretion to remove a restriction upon application by an affected proprietor, exercised judicially. The Applicant produced only an official search showing registration and the restriction but not the Green Card that would reveal the basis of the restriction. Because restrictions exist to prevent fraud or improper dealing, the court declined to remove it without notice to the person who sought it, as that person would otherwise be condemned unheard contrary to natural justice.

p. 3
02

Whether the restriction should be removed in the absence of the person who applied for it

Holding

No; removing the restriction without notice to the restrictor would offend the rules of natural justice

Reasoning

The Applicant did not enjoin the person who caused the Registrar to place the restriction as a respondent. The court reasoned that allowing removal in those circumstances would mean that person is condemned unheard. The restriction serves a protective purpose under Section 76(1), and the court would not lift it without notice to the interested party.

p. 3

Legal principles established

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  • Under Section 78(2) of the Land Registration Act, the court has discretion to order removal of a restriction on a title, but that discretion must be exercised judicially
  • A restriction under Section 76(1) of the Land Registration Act is placed for the prevention of fraud or improper dealing or for any other sufficient cause, and may be placed by the Registrar on his own motion or on application by an interested person

Court orders

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  1. 1.The Miscellaneous Application dated 20th July 2017 is dismissed entirely
  2. 2.Costs being in the cause

Authorities

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Legislation

  • Land Registration ActSection 78(2)
  • Land Registration ActSection 76(1)
  • Civil Procedure ActSection 3A
Jurisdiction invoked
Section 78(2) of the Land Registration Act, 2012 and Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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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, "John Kamau Kinyanjui v Thika District Land Registrar [2017] KEELC 714 (KLR)", Case Analysis (2017). Miscellaneous Application dated 20th July 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/714/eng@2017-12-20

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