Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedCivil Suit (Plaint dated 3rd May 2013, filed 20th September 2013)· [2018] KEELC 3732 (KLR)

Julius Mkauma Tsuma v Juma Mohamed Magongo [2018] KEELC 3732 (KLR)

Environment and Land Court
19 April 2018
JOJ.O. Olola
1,331 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ordered removal of a wrongly placed land restriction, confirming adopted tribunal decisions bind everyone as court judgments.

What this practically means

#

Executive summary

#
The Plaintiff, Julius Mkauma Tsama, sued for removal of a restriction registered by the 1st Defendant against land parcel No. Mgumo/Patsa/Mazeras/135, which belonged to his late father, Tsama Mkuzi Saha. The Plaintiff held a confirmed grant of letters of administration to his father's estate. He testified, with his brother as PW2, that the 1st Defendant had used a pending dispute over a different parcel, No. 130, to cause the 2nd Defendant, the Land Registrar Kilifi, to register the restriction on Parcel 135. The Kilifi District Land Disputes Tribunal in Case No. 51 of 2005 had found that Plot No. 135 belonged absolutely to the Plaintiff's late father, and that decision was adopted as a judgment of the Kaloleni Resident Magistrate's Court in Land Award Case No. 27 of 2006, making it binding and enforceable. The Defendants called no evidence; the 1st Defendant's application to stay the proceedings pending revocation of the Plaintiff's grant in Mombasa High Court Succession Cause No. 216 of 2010 had been dismissed on 12th May 2017. The court, invoking Sections 78(1) and 78(2) of the Land Registration Act, held that the Registrar had failed to act as mandated and that the Plaintiff had proved his case on a balance of probability. The court directed the 2nd Defendant to forthwith withdraw the restriction and awarded the Plaintiff the costs of the suit. Judgment was delivered at Malindi on 19th April 2018 by J.O. Olola J.

Key legal issues

#
01

Whether the restriction registered against Parcel No. Mgumo/Patsa/Mazeras/135 should be removed

Holding

The Plaintiff proved his case on a balance of probability; the restriction was placed on the wrong parcel and the Registrar failed to act under Section 78(1), so the Court ordered its withdrawal under Section 78(2).

Reasoning

The Tribunal in Case No. 51 of 2005 found that Plot No. 135 belonged to the Plaintiff's late father, and that decision was adopted as a judgment of the Kaloleni Resident Magistrate's Court in Land Award Case No. 27 of 2006, making it binding. The 1st Defendant nonetheless caused the restriction to be registered on Parcel 135, relying on the dispute over Parcel 130. The Registrar refused or neglected to lift the restriction despite notice and provision of the confirmed grant. The Defendants called no evidence to controvert the Plaintiff's case.

p. 2

Legal principles established

#
  • A Tribunal decision adopted as a judgment of the court remains binding and enforceable as an order of the court.
  • Upon the application of a proprietor affected by a restriction, the Court may order the restriction to be removed under Section 78(2) of the Land Registration Act.

Court orders

#
  1. 1.The 2nd Defendant is directed to forthwith withdraw the restriction registered against Land Parcel No. Mgumo/Patsa/Mazeras/135
  2. 2.The Plaintiff shall have the costs of this suit

Authorities

#

Legislation

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

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Julius Mkauma Tsuma v Juma Mohamed Magongo [2018] KEELC 3732 (KLR)", Case Analysis (2018). Civil Suit (Plaint dated 3rd May 2013, filed 20th September 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3732/eng@2018-04-19

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