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ELCPartially AllowedELC Case No. 607 of 2017· [2017] KEELC 754 (KLR)

Raphael Thaituru Wangora v Land Registrar, Ngong Registry [2017] KEELC 754 (KLR)

Environment and Land Court
5 December 2017
COCHRISTINE OCHIENG
1,055 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 Plaintiff, Raphael Thaituru Wangora, sued the Land Registrar, Ngong Registry, seeking a declaration that a restriction registered on 25th November, 2009 against title NGONG/NGONG/2138 was unlawful, an order that the Defendant's refusal to remove it was unreasonable and rendered the Defendant personally liable for costs, and an order compelling its removal. The Plaintiff purchased the land in 1973. The restriction was entered with his nephews, Samuel Shena Motamperia and Gideon Kirorio, following a criminal case in which the Plaintiff and Jacob Wangora were convicted; the conviction was quashed by the Court of Appeal on 17th January, 2014. In early 2017 the nephews, showing remorse, wrote to the Land Registrar requesting removal and paid Kshs.3,000, but the Registrar refused and demanded a court letter. The Defendant never entered appearance or filed a defence despite service, and the suit proceeded formally. At the hearing on 16th October, 2017, PW1 confirmed the restriction had been removed on 21st August, 2017 after the suit was filed, and abandoned prayers (a) and (b), pursuing only costs. Framing the sole issue as whether the Plaintiff was entitled to costs, the court, relying on Sections 24(a) and 78 of the Land Registration Act, held the Defendant's conduct forced the Plaintiff to incur legal costs and file suit. Judgment was entered for the Plaintiff with the sole order that the costs of the suit be borne by the Defendant. Judgment delivered at Kajiado on 5th December, 2017 by Christine Ochieng, Judge.

Key legal issues

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01

Whether the Plaintiff is entitled to the costs of this suit

Holding

The Plaintiff was entitled to costs because the Defendant unjustifiably declined to remove the restriction, forcing the Plaintiff to incur legal costs and file the suit

Reasoning

The Defendant entered a restriction on the Plaintiff's title in 2009 and, despite requests by the Plaintiff and his nephews (who paid Kshs.3,000), refused to remove it and instead demanded a court letter. The restriction was only removed after this suit was filed. Under Sections 24(a) and 78 of the Land Registration Act the Plaintiff, as registered absolute proprietor, had a statutory avenue for removal which the Defendant frustrated. The Defendant filed no defence to controvert the claim.

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Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership of that land in that person
  • A Registrar may remove or vary a restriction on application by an interested person or on own motion after hearing affected parties; and upon application of a proprietor affected by a restriction, the Court may order its removal, variation or other order including as to costs

Court orders

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  1. 1.The costs of this suit to be borne by the Defendant

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 78
  • Civil Procedure RulesOrder 10 (2) and (9)
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; suit against the Land Registrar concerning a restriction on title NGONG/NGONG/2138 under the Land Registration Act (Sections 24(a) and 78)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Raphael Thaituru Wangora v Land Registrar, Ngong Registry [2017] KEELC 754 (KLR)", Case Analysis (2017). ELC Case No. 607 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/754/eng@2017-12-05

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