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ELCAllowedAmended Originating Summons dated 18th December 2019 (arising from restriction in Thika ELC 462 of 2017)· [2020] KEELC 1625 (KLR)

Jane Njeri Njoroge v Land Registrar Kiambu & another [2020] KEELC 1625 (KLR)

Environment and Land Court

23 July 2020

LGL. Gacheru

868 words in judgment

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The bottom line

When a Kenyan land suit dies with a party, any restriction it created on the title also dies—here the court ordered one removed.

What this practically means

Executive summary

Jane Njeri Njoroge, the Applicant, filed an Amended Originating Summons dated 18th December 2019 seeking removal of a restriction registered against property Kiambaa/Ruaka/2556 pursuant to an order of the court in Thika ELC 462 of 2017. She contended that the restriction was placed by Joseph Kimani Muhuru, who died on 17th September 2017; that his Notice of Motion in ELC 462 of 2017 was dismissed on 9th October 2017; and that the suit abated on 31st July 2018, a position confirmed by order dated 11th July 2019. She relied on Section 73(1) of the Land Registration Act, submitting that only the court could remove a restriction imposed by court order, that the Registrar lacked such power, and that the deceased's surviving adult sons, who are beneficiaries of the property, raised no objection. The Respondents did not enter appearance. The court, L. Gacheru J, framed a single issue: whether the Applicant was entitled to the orders sought. Relying on Musha Chengo Kenga and Rebecca Mijide Mungole, the court held that an abated suit ceases to exist in law and its cause of action is extinguished. Since the suit giving rise to the restriction no longer existed, the restriction had no anchor. The Originating Summons was allowed entirely and the restriction was removed. Judgment was delivered virtually pursuant to COVID-19 directives, with the parties waiving compliance with Order 21 rule 1 of the Civil Procedure Rules. No costs order was recorded.

Key legal issues

Whether the restriction on Kiambaa/Ruaka/2556 should be removed

Holding

The restriction was removed because the suit in which the restriction order was made abated

Reasoning

The restriction was registered pursuant to a court order dated 11th January 2017 pending hearing of an application in Thika ELC 462 of 2017. That application was dismissed on 9th October 2017 and the suit abated on 31st July 2018 upon the death of Joseph Kimani Muhuru without substitution. An abated suit ceases to exist in law and the cause of action is extinguished; consequently the restriction order had no foundation and the court ordered its removal under Section 73(1) of the Land Registration Act.

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Legal principles established

An abated suit ceases to exist in the eye of the law, and any interim order dependent on it (such as a restriction) has no anchor once the suit abates

Court orders

1.The restriction registered against property Kiambaa/Ruaka/2556 is removed
2.The Originating Summons Application dated 10th December 2019 is allowed entirely

Authorities

Legislation

Land Registration ActSection 73(1)
Civil Procedure RulesOrder 21 rule 1

Cases cited (3)

Musha Chengo Kenga & another Vs Lenox Kahindi Fakuro (On Behalf of the Fakuro Randu)
[2019] eKLR
Rebecca Mijide Mungole & another Vs Kenya Power & Lighting Company Ltd & 2 others
[2017] Eklr
Said Sweilen Gheitan Saanum –v- Commissioner of Lands & 5 Others

Jurisdiction invoked: Section 73(1) of the Land Registration Act

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Jane Njeri Njoroge v Land Registrar Kiambu & another [2020] KEELC 1625 (KLR)", Case Analysis (2020). Amended Originating Summons dated 18th December 2019 (arising from restriction in Thika ELC 462 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1625/eng@2020-07-23

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