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ELCDismissedELC Misc. Application No. 24 of 2019· [2020] KEELC 1302 (KLR)

Daniel Gitau Kuria v District Land Registrar, Thika & another [2020] KEELC 1302 (KLR)

Environment and Land Court
24 September 2020
1,696 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to remove land restrictions because the owner gave no evidence the restrictions existed or had asked the Registrar to remove them.

What this practically means

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Executive summary

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The applicant, Daniel Gitau Kuria, moved the Environment and Land Court at Thika by Notice of Motion dated 17th April 2019 seeking, first, adoption of the ruling and orders issued by L. Gacheru J in ELC Misc. Application No. 76 of 2017 (Thika) on 26th October 2018, and secondly, an order compelling the District Land Registrar, Thika to remove restrictions allegedly placed on his land parcel Ruiru East/Juja East Block 2/843 and its ten subdivisions at the instigation of the DCIO, Juja Police Division. The application was anchored on section 78(2) of the Land Registration Act and section 3 of the ELC Act. The applicant averred he purchased the land in 2013, conducted searches, obtained title deeds, was acquitted of a charge of altering a false document, and was never notified of the restrictions. The Respondents, through the Attorney General, filed grounds of opposition contending that no current searches were attached and that affected parties were not enjoined. The court found the adoption prayer untenable, holding that cases are decided on their own merits and orders in one matter cannot be applied as blanket orders in another. On the removal of restrictions, the court held that the applicant proved neither the existence of the restrictions by way of recent searches, nor notice to the Registrar, nor that the restrictions were placed at the 2nd Respondent's instigation; further, some title deeds stood in the names of Joseph Kuria Gitau and Wanjiku Gitau, who were not parties. The application was dismissed entirely with costs to the Respondents.

Key legal issues

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01

Whether the ruling and orders in ELC Misc. No. 76 of 2017 could be adopted in this application

Holding

The prayer was not tenable; each case must be decided on its own merits and the applicant had to satisfy the required standard in this case

Reasoning

The court held that a ruling and orders in a distinct, earlier matter were arrived at after consideration of the evidence in that case. They cannot be transplanted as blanket orders into a new application unless the applicant independently proves entitlement. The applicant attached the ruling and order but failed to demonstrate on evidence that the conditions justifying removal of restrictions existed in the present matter.

p. 3
02

Whether the restrictions should be removed under section 78(2) of the Land Registration Act

Holding

The application was not merited; the statutory prerequisites were not satisfied

Reasoning

While the Registrar has discretion under section 76(1) to place restrictions to prevent fraud or improper dealing, a proprietor seeking removal must show the restriction exists, must give notice to the Registrar, and apply for removal upon the Registrar's failure. The applicant attached no recent searches showing restrictions on the parcels, no evidence the 2nd Respondent instigated them, and no notice to the Registrar. Some titles were held by third parties not before the court.

p. 2

Legal principles established

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  • For a court to order removal of a restriction under section 78(2) of the Land Registration Act, there must be evidence of the existence of the restriction, notice to the Registrar to remove it, and an application by the proprietor for its removal
  • Orders issued in one case cannot be adopted as blanket orders in a distinct case where the applicant has not proved the requisite factual foundation

Court orders

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  1. 1.The applicant's Notice of Motion dated 17th April 2019 is dismissed entirely with costs to the Respondents

Authorities

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Legislation

  • Land Registration ActSection 78(2)
  • Land Registration ActSection 76(1)
  • Environment and Land Court ActSection 3
  • Civil Procedure RulesOrder 21 rule 1
Jurisdiction invoked
Section 78(2) of the Land Registration Act and Section 3 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, "Daniel Gitau Kuria v District Land Registrar, Thika & another [2020] KEELC 1302 (KLR)", Case Analysis (2020). ELC Misc. Application No. 24 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1302/eng@2020-09-24

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