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ELCAllowedThika ELC Miscellaneous Application (Notice of Motion dated 26th May 2016)· [2018] KEELC 3743 (KLR)

Joyce Waithira Mwangi v Thika Land Registrar [2018] KEELC 3743 (KLR)

Environment and Land Court
9 April 2018
LGL. GACHERU
1,559 words in judgment
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The bottom line

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A Kenyan landowner can ask the court to remove a caution/restriction on their own title once the reason for it — like fear of fraud — no longer exists.

What this practically means

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Executive summary

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The applicant, Joyce Waithira Mwangi, the registered owner of Thika Municipality Block 9/682 since 16th October 2015, filed a miscellaneous application seeking lifting of a restriction registered on the title on 30th October 2015 at her own request. She had placed the restriction, reading 'No dealings without personal appearance of the registered owner', out of caution against fraud while she resided in the United Kingdom. She later experienced financial difficulties and wished to deal with the property by accessing credit or disposing of it, but the Thika Land Registrar declined her requests to withdraw the restriction without giving reasons. The applicant moved under Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Section 78 of the Land Registration Act, relying on Sections 76 and 78(2) of that Act and the David Macharia Kinyuru case. The respondent, though served, did not enter appearance or file a response. The court held that restrictions are not meant to endure indefinitely, that the feared fraud or improper dealing had not occurred, and that under Section 78(2) the court had power to order removal. Finding no reason for the restriction to remain, the court allowed the application entirely, ordering the restriction lifted and costs to be in the cause. Judgment was delivered at Thika on 9th April 2018 by L. Gacheru J.

Key legal issues

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01

Power of the court to lift a restriction on a registered title

Holding

The court has power under Section 78(2) of the Land Registration Act to order removal of a restriction, and where the person who sought the restriction no longer needs it and no fraud or improper dealing has occurred, there is no reason for it to remain.

Reasoning

The applicant was the registered owner and had herself procured the restriction out of fear of fraud while she was in the United Kingdom. The feared fraud did not materialise. Section 76(2) provides that restrictions may endure for a particular period, until a particular event, or until further orders, and are not meant to be indefinite. The Registrar was served and did not appear to justify retaining the restriction. The court therefore found the application merited.

p. 3

Legal principles established

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  • Restrictions on a title to land are not intended to endure indefinitely; they may endure for a particular period, until the occurrence of a particular event, or until the making of further orders.
  • Under Section 78(2) of the Land Registration Act, upon application of a proprietor affected by a restriction and notice to the Registrar, the court may order the restriction to be removed, varied or make such other order as it deems fit, and may order costs.

Court orders

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  1. 1.The restriction registered against Thika Municipality Block 9/682 on 30th October 2015 is lifted and removed from the register
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land Registration Act 2012Sections 76, 76(2) and 78(2)

Cases cited (1)

  • David Macharia Kinyuru v District Land Registrar, Naivasha & Another
    Nakuru ELC Misc. Appl. No. 331 of 2016
Jurisdiction invoked
Section 78(2) of the Land Registration Act 2012; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (16)

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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, "Joyce Waithira Mwangi v Thika Land Registrar [2018] KEELC 3743 (KLR)", Case Analysis (2018). Thika ELC Miscellaneous Application (Notice of Motion dated 26th May 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3743/eng@2018-04-09

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