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ELCStruck OutMiscellaneous Application dated 15th September, 2017 (Ngong/Ngong/48669)· [2019] KEELC 517 (KLR)

Pharis Wachira Mwangi & 2 others v Land Registrar, Ngong Land Registry & another [2019] KEELC 517 (KLR)

Environment and Land Court
5 December 2019
COChristine Ochieng
1,698 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a landowner's attempt to remove a title restriction by miscellaneous application, ruling it must be done through a full suit joining everyone involved.

What this practically means

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Executive summary

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The Applicants, registered proprietors of Ngong/Ngong/48669, moved the court by Notice of Motion dated 15th September 2017 under Order 51 Rule 1 of the Civil Procedure Rules, section 78(2) of the Land Registration Act and section 3A of the Environment and Land Court Act, seeking removal of a restriction placed on the title by the 2nd Respondent, a law firm, on 13th June 2016. They had written to the 2nd Respondent and the Land Registrar without response. The 2nd Respondent opposed, explaining she acted on instructions of her client John Mbiraru Naitera, who alleged fraudulent subdivision of his original parcel Ngong/Ngong/46786; the client had since died, and she lacked authority to lift the restriction. She also raised a preliminary objection that the suit was incurably defective as it should have been commenced by plaint and the Registrar was sued without the Attorney General. Framing the sole issue as whether the restriction should be lifted, the court considered sections 76 and 78 of the Land Registration Act and followed Joseph Kibowen Chemjor v William C. Kisera on the limits of Article 159(2)(d). It held the issues were substantive and required all concerned parties, including the person responsible for the restriction, to be enjoined, and that the Applicants' failure to include that party or furnish acquisition documents rendered the miscellaneous cause incompetent. The court struck out the cause, directed the Applicants to file a substantive suit, and ordered costs in the cause.

Key legal issues

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01

Whether the restriction on Ngong/Ngong/48669 should be lifted under sections 76 and 78 of the Land Registration Act

Holding

The application was struck out rather than granted; the restriction question is substantive and requires a full suit with all interested parties enjoined

Reasoning

Section 76 permits restrictions to prevent fraud or improper dealing, and section 78(2) allows a proprietor to apply to court for removal. The 2nd Respondent, a law firm, acted on instructions of a client (since deceased) alleging fraudulent subdivision of Ngong/Ngong/46786. Because the client who procured the restriction was not a party and the Applicants did not furnish acquisition documents, the court found the miscellaneous cause incompetent and directed filing of a substantive suit.

p. 2
02

Whether the application, commenced otherwise than by plaint, is defective

Holding

The court associated itself with Chemjor v Kisera: commencement documents that cannot be regarded as pleadings go beyond mere technicality

Reasoning

Relying on Joseph Kibowen Chemjor v William C. Kisera, the court accepted that while Article 159(2)(d) eschews technicalities, instituting a suit in a manner where the documents cannot be regarded as pleadings is a substantive defect. Given the substantive issues and missing parties, striking out the miscellaneous cause with liberty to file a substantive suit was the lesser evil and caused minimal prejudice.

p. 2

Legal principles established

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  • Where a dispute over removal of a restriction raises substantive issues, all parties concerned, including the party responsible for registering the restriction, must be enjoined in a substantive suit; a miscellaneous cause omitting them is incompetent.

Court orders

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  1. 1.The miscellaneous cause struck out as incompetent
  2. 2.Applicants directed to file a substantive suit enjoining all parties concerned
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Land Registration ActSection 76
  • Land Registration ActSection 78(2)
  • Environment and Land Court ActSection 3A
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (3)

  • David Macharia Kinyuru v District Land Registrar, Naivasha & Another
    (2017) eKLR
  • Joyce Waithira Mwangi v Thika Land Registrar
    (2018) eKLR
  • Joseph Kibowen Chemjor v William C. Kisera
    [2013] eKLR
Jurisdiction invoked
Order 51 Rule 1 of the Civil Procedure Rules, Section 78(2) of the Land Registration Act and Section 3A of the Environment and Land Court Act

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, "Pharis Wachira Mwangi & 2 others v Land Registrar, Ngong Land Registry & another [2019] KEELC 517 (KLR)", Case Analysis (2019). Miscellaneous Application dated 15th September, 2017 (Ngong/Ngong/48669). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/517/eng@2019-12-05

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