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ELCAllowedNot stated in the judgment (Notice of Motion dated 4th December 2018)· [2019] KEELC 806 (KLR)

John Kamau Kinyanjui v Thika District Land Registrar & another [2019] KEELC 806 (KLR)

Environment and Land Court
8 November 2019
1,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court lifted a land restriction placed without notice to the owner, confirming restrictions cannot sit indefinitely without evidence of fraud.

What this practically means

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Executive summary

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The Plaintiff, John Kamau Kinyanjui, moved the Environment and Land Court at Thika by Notice of Motion dated 4th December 2018 under Section 78(2) of the Land Registration Act, Section 3A of the Civil Procedure Act and Order L Rule 2 of the Civil Procedure Rules, seeking the lifting of a restriction lodged against title number Ruiru/Kiu Block 2/2616. He averred that he purchased the property from the 2nd Respondent and was issued a title in 2004, took possession, and that the 1st Respondent, the Thika Land Registrar, lodged a restriction on 1st December 2011 bearing the notation 'Consult the original owner before any dealings' without notice to him or any communicated reason. He applied for withdrawal of the restriction by letter dated 21st July 2016 without success, and no civil or criminal proceedings challenged his ownership. Despite service, neither Respondent entered appearance or filed a response. The court, L. Gacheru J, found the property registered in the Applicant's name since 5th January 2005, that the Applicant was never given the written notice of the restriction required by Section 77(1) of the Land Registration Act, making the restriction unlawful and improper. Applying Section 76(2) and the decision in David Macharia Kinyuru v District Land Registrar, Naivasha & Another, the court held that restrictions exist to stem fraud or improper dealings and may not endure indefinitely, and that no such fraud or impropriety was evidenced. Invoking Section 78(2), the court allowed the application entirely, ordered the restriction lifted, with costs in the cause.

Key legal issues

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01

Whether the restriction placed on the Applicant's title was lawful

Holding

The restriction was unlawful and improper because the Registrar never gave the Applicant written notice of it as required by Section 77(1) of the Land Registration Act.

Reasoning

Section 77(1) obliges the Registrar to give written notice of a restriction to the affected proprietor. The Applicant testified, and the Land Registrar did not respond or controvert, that he was never notified nor informed of the reasons for the restriction. The allegation therefore stood uncontroverted, and the court found the restriction unlawful and improper.

p. 2
02

Whether the restriction was justified by fraud or improper dealing

Holding

No evidence of fraud or improper dealing was produced, so the restriction was not merited.

Reasoning

Relying on the purpose of restrictions as set out in David Macharia Kinyuru v District Land Registrar, Naivasha & Another, restrictions exist essentially to stem fraud or improper dealings. The Respondents did not appear to justify the restriction, and no fraud or improper dealing was demonstrated on the title, so the restriction lacked merit.

p. 2
03

Whether a restriction may remain on a title indefinitely

Holding

Restrictions may only endure for a particular period, until a particular event, or until further orders under Section 76(2); they cannot remain indefinitely where no justification is shown.

Reasoning

The court cited Section 76(2) of the Land Registration Act, which limits the duration of restrictions, and the authority of David Macharia Kinyuru, holding that restrictions should hold property in abeyance only while the underlying issue is resolved. With no underlying dispute, investigation or court case shown after over seven years, there was no reason to retain the restriction.

p. 2

Legal principles established

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  • A restriction on a title is meant to prevent fraud or improper dealings and is not intended to endure indefinitely
  • Where a proprietor affected by a restriction was never given notice under Section 77(1) of the Land Registration Act, the restriction is unlawful and improper
  • Under Section 78(2) of the Land Registration Act, the court has power to order removal or variation of a restriction and to make orders as to costs

Court orders

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  1. 1.The Notice of Motion dated 4th December 2018 is allowed entirely
  2. 2.The restriction lodged against title number Ruiru/Kiu Block 2/2616 is lifted/removed
  3. 3.Costs of the application in the cause

Authorities

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Legislation

  • Land Registration ActSection 78(2)
  • Land Registration ActSection 77(1)
  • Land Registration ActSection 78(1)
  • Land Registration ActSection 76(2)
  • Civil Procedure Act (Cap 21)Section 3A
  • Civil Procedure RulesOrder L Rule 2

Cases cited (1)

  • David Macharia Kinyuru Vs District Land Registrar, Naivasha & Another
    Nakuru ELC Misc. Appl. No. 331 of 2016
Jurisdiction invoked
Section 78(2) of the Land Registration Act, 2012; Section 3A of the Civil Procedure Act (Cap 21); Order L Rule 2 of the Civil Procedure Rules

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, "John Kamau Kinyanjui v Thika District Land Registrar & another [2019] KEELC 806 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 4th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/806/eng@2019-11-08

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