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ELCAllowedNotice of motion dated 2nd August 2017 (Migori ELC)· [2019] KEELC 4009 (KLR)

Stephen Chacha Mwita v Land Registrar Kuria District & another [2019] KEELC 4009 (KLR)

Environment and Land Court
13 March 2019
1,502 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that land restrictions cannot stay on a title indefinitely and ordered one removed after 14 years.

What this practically means

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Executive summary

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The applicant, Stephen Chacha Mwita, moved the Environment and Land Court at Migori by notice of motion dated 2nd August 2017 under section 78 of the Land Registration Act and provisions of the Civil Procedure Act, seeking an order compelling the County Land Registrar, Kuria District, to remove a restriction lodged on LR NO. BUGUMBE/MABERA/639, with costs borne jointly by the respondents. The applicant relied on a certificate of official search showing he is the registered proprietor, correspondence showing he had unsuccessfully asked the Registrar to lift the restriction lodged on 3rd December 2003, and complained he had not enjoyed his title for fourteen years. The 1st respondent, though served, did not enter appearance or respond. The 2nd respondent, Boke Mwamu Tabuya, opposed, asserting she was a beneficiary of the suit property and that the restriction safeguarded her interests pending determination of Kisii HC Misc. Civil Application No. 122 of 2005. The court framed four issues: registration, the restriction, notice to the Registrar, and entitlement to relief. It found the applicant duly registered, noted the pending Kisii suit did not feature the suit property and that the 2nd respondent had not demonstrated her beneficial interest. Applying sections 24, 25, 76 and 78(2) of the Land Registration Act and Article 40(1) of the Constitution, and citing Joyce Waithira Mwangi v Thika Land Registrar on the impermanence of restrictions, the court found the motion merited. It ordered removal of the restriction forthwith and awarded costs of the motion against the respondents jointly.

Key legal issues

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01

Court's power under section 78(2) Land Registration Act to remove a restriction on application of an affected proprietor

Holding

The court has power, upon application of a proprietor affected by a restriction and upon notice to the Registrar, to order the restriction removed, varied or make such other order as it deems fit.

Reasoning

The motion was expressly brought under section 78(2) of the Land Registration Act. The section empowers the court, on notice to the Registrar, to order removal, variation or other orders as it deems fit, including costs. The applicant proved his registration, the existence of the restriction and notice to the Registrar, activating the court's discretion.

p. 2
02

Whether a restriction may be maintained indefinitely pending an unrelated suit

Holding

No. A restriction is for the prevention of fraud, improper dealing or any other sufficient cause, is meant to endure for a particular time or until an event or further order, and cannot remain on a title for eternity where the underlying dispute does not concern the property.

Reasoning

The 2nd respondent justified the restriction by a pending suit, Kisii HC Misc. Civil Application No. 122 of 2005. The court perused that file and found the suit property did not feature in it, and that the 2nd respondent had not demonstrated how she was a beneficiary of the property. The Registrar, duly served, offered no explanation why the restriction should remain.

p. 2
03

Proprietor's rights under the Land Registration Act and Article 40(1) of the Constitution

Holding

A registered proprietor's interest and rights under sections 24 and 25 of the Land Registration Act, and the right to acquire and own property under Article 40(1) of the Constitution, support removal of an unjustified restriction.

Reasoning

The court bore in mind the definition of 'Proprietor' in section 2 of the Act and the applicant's interest conferred by registration under sections 24 and 25, reinforced by the constitutional right to property under Article 40(1). Fourteen years of restriction without justification infringed the proprietor's enjoyment of title.

p. 2

Legal principles established

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  • Restrictions on title are not to remain indefinitely; a restriction by itself does not solve a dispute and a proprietor affected by a restriction may apply to court for its removal under section 78(2) of the Land Registration Act.

Court orders

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  1. 1.The Land Registrar, Kuria East and West sub counties to remove the restriction made on 3rd December 2003 in respect of LR NO. BUGUMBE/MABERA/639 forthwith
  2. 2.Costs of the motion to be borne jointly by the respondents

Authorities

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Legislation

  • Land Registration ActSection 78
  • Land Registration ActSections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act cited in motion
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3, 3A, 63(e) and 27 (proviso)
  • Land Registration ActSections 24(a), 25, 26, 76, 77, 78(1) and (2)
  • Land Registration ActSection 2 (definition of Proprietor)
  • Constitution of Kenya, 2010Article 40(1)

Cases cited (1)

  • Joyce Waithira Mwangi –v- Thika Land Registrar
    (2018) eKLR
Jurisdiction invoked
Section 78(2) of the Land Registration Act read with Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act (Cap 21)

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, "Stephen Chacha Mwita v Land Registrar Kuria District & another [2019] KEELC 4009 (KLR)", Case Analysis (2019). Notice of motion dated 2nd August 2017 (Migori ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4009/eng@2019-03-13

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