Daniel Gitau Kuria v District Land Registrar, Thika & another [2020] KEELC 1302 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ruling and orders in ELC Misc. No. 76 of 2017 could be adopted in this application
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
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.
Whether the restrictions should be removed under section 78(2) of the Land Registration Act
The application was not merited; the statutory prerequisites were not satisfied
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.
Legal principles established
#- 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
#- 1.The applicant's Notice of Motion dated 17th April 2019 is dismissed entirely with costs to the Respondents
- Jurisdiction invoked
- Section 78(2) of the Land Registration Act and Section 3 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.