Samuel Murimi Kinene v Assistant County Commissioner, Ngenda Ward & another [2017] KEELC 1629 (KLR)
The bottom line
#A Kenyan court removed a land restriction placed without notice or hearing, confirming landowners can challenge improper restrictions and win costs.
What this practically means
#Executive summary
#Key legal issues
#Validity of a restriction registered without notice or hearing
The restriction was invalidly placed; the procedure under Sections 76 and 77 of the Land Registration Act was not followed and no justification for it was shown.
Section 76(1) permits the Registrar to place a restriction only after directing inquiries, serving notices and hearing affected persons. Section 77 requires written notice to the proprietor. The Defendants did not enter appearance or file defence, so no evidence established that inquiries were made or that the Plaintiff received notice or a hearing. The onus of justifying the restriction lay on the party that lodged it, and that explanation was never offered.
Burden of proof on removal of a restriction
Once the proprietor objects to a restriction, the onus shifts to the person who lodged it to justify why it should remain.
Applying by analogy the holding in Maria Ngangi Ngwako v Charles Mwezi Ngangi (2014 eKLR) that the onus is on the cautioner to justify a caution once objected to by the proprietor, the court held the same reasoning applies to restrictions. The Defendants failed to offer any explanation, so the Plaintiff's case was proved on a balance of probability.
Legal principles established
#- When a caution or restriction is objected to by the proprietor, the onus is upon the cautioner or the person who lodged the restriction to justify its lodging and continued existence.
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendants jointly and severally in terms of prayer (a) of the Plaint, namely an order for the 2nd Defendant to withdraw the restriction lodged by the 1st Defendant against land parcel No. Ndarugu/Gacharage/2439
- 2.Costs of the suit awarded to the Plaintiff
- Jurisdiction invoked
- Section 78(2) of the Land Registration Act - application by an affected proprietor for removal of a restriction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Murimi Kinene v Assistant County Commissioner, Ngenda Ward & another [2017] KEELC 1629 (KLR)", Case Analysis (2017). ELC No. 438 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1629/eng@2017-10-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.