Stephen Chacha Mwita v Land Registrar Kuria District & another [2019] KEELC 4009 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Court's power under section 78(2) Land Registration Act to remove a restriction on application of an affected proprietor
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.
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.
Whether a restriction may be maintained indefinitely pending an unrelated suit
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.
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.
Proprietor's rights under the Land Registration Act and Article 40(1) of the Constitution
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.
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.
Legal principles established
#- 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
#- 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.Costs of the motion to be borne jointly by the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.