Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedPetition No. 13 of 2018· [2019] KEELC 3682 (KLR)

Julius Nyamai Mutisya v Chief Land Registrar & another [2019] KEELC 3682 (KLR)

Environment & Land Court
19 March 2019
KBK. BOR
675 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The Petitioner, registered proprietor of Nairobi/Block 93/40, filed a constitutional petition dated 7/2/2018 seeking a declaration that a restriction registered against the property on 4/10/2005 was wrongful, an order of mandamus compelling the Chief Land Registrar to remove it, and compensation or general and exemplary damages. He averred that the restriction was purportedly registered pursuant to a court order in Milimani Commercial Court Civil Suit No. 1253 of 2001, a suit unrelated to his property, and that his 15/2/2017 letter requesting removal was ignored. The 1st Respondent admitted registering the restriction pursuant to a prohibitory order in that suit but explained that the underlying judgment referred to Nairobi/Block 90/43 and the drafter of the prohibitory order mistakenly described the property as Nairobi/Block 93/40; the 1st Respondent had registered what the decree holder presented and acted without intent. The court examined the judgment in Civil Suit No. 1253 of 2001, concurred that the correct property was Nairobi Block 90/43, and held that the misdescription in the prohibitory order was a mistake. It found, however, that no good reason was given for the 1st Respondent's inaction after learning of the Petitioner's complaint, a failure which necessitated the petition. The court ordered the 1st Respondent to remove the caveat forthwith and to pay the costs of the petition. The petition was allowed only in part, as no award of damages was made.

Key legal issues

#
01

Whether the restriction registered on 4/10/2005 against Nairobi/Block 93/40 was wrongful

Holding

Yes. The prohibitory order in Milimani Commercial Court Civil Suit No. 1253 of 2001 concerned Nairobi/Block 90/43, and the description of the property as Nairobi/Block 93/40 in the prohibitory order was a mistake.

Reasoning

The court examined the judgment in Civil Suit No. 1253 of 2001 and agreed with the 1st Respondent that the Judge gave the correct case number as Nairobi Block 90/43, but the prohibitory order misdescribed the land as Nairobi/Block 93/40. The 1st Respondent had merely registered what was presented by the decree holder, and the error was inadvertent rather than intentional.

p. 2
02

Whether the 1st Respondent was culpable for failing to remove the restriction upon the Petitioner's request

Holding

Yes. The Petitioner wrote to the 1st Respondent on 15/2/2017 requesting lifting of the caveat, and no good reason was given for the inaction; this suit would have been avoided had the queries been taken seriously.

Reasoning

The court held that the 1st Respondent, once aware of the Petitioner's complaint, failed to act without any justification. That failure necessitated the filing of the petition in 2018. The court accordingly ordered removal of the caveat forthwith and directed the 1st Respondent to bear the costs of the petition.

p. 2

Legal principles established

#
  • Where a restriction is registered on land pursuant to a prohibitory order that misdescribes the property, and the registrar fails to act on a proprietor's request for removal, the registrar is liable in costs and the restriction should be lifted

Court orders

#
  1. 1.The 1st Respondent to remove the caveat registered against the Suit Property forthwith
  2. 2.The 1st Respondent to pay the costs of the petition

Authorities

#

Cases cited (1)

  • Milimani Commercial Court Civil Suit No. 1253 of 2001
Jurisdiction invoked
Constitutional petition invoking fundamental rights enforcement before the Environment and Land Court (no specific article stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Julius Nyamai Mutisya v Chief Land Registrar & another [2019] KEELC 3682 (KLR)", Case Analysis (2019). Petition No. 13 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3682/eng@2019-03-19

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