Registered Trustees of the National Council of Churches of Kenya v Chief Land Registrar & 2 Others [2020] KEELC 2625 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the Registrar complied with due process in placing the restriction
No evidence was placed before the Court that notices were served on the Applicant or that a hearing was conducted before the restriction was placed, but the procedural breach did not warrant lifting the restriction
Section 76 of the Land Registration Act, 2012 requires the Registrar to direct inquiries, serve notices and hear affected persons before making a restriction order. The Court acknowledged no evidence of such process, yet held that given the investigation findings that the land was public land unlawfully registered to the Applicant, the restriction should remain pending the recovery suit.
Whether public interest favours removal of the restriction
Public interest favoured retaining the restriction pending determination of ELC No. 25 of 2019
The suit land was found upon investigation to be public land illegally alienated in favour of the Applicant. The EACC had filed a recovery suit. The Court adopted the 'lower risk of injustice' principle from Films Rover International, holding the substratum of the dispute would be undermined by lifting the restriction.
Legal principles established
#- A restriction on registered land may be placed by the Registrar for the prevention of fraud, to curb improper dealings, or for any sufficient cause, and the Registrar must make inquiries, serve notices and hear affected persons before placing a restriction
- Even where procedural breaches occur in placing a restriction, the court may decline to lift it where the lower risk of injustice lies in leaving the restriction in place pending resolution of the underlying dispute
Court orders
#- 1.The Notice of Motion amended on 10th September 2019 is dismissed
- 2.Costs of the application awarded to the 3rd Respondent
- Jurisdiction invoked
- Section 78(2) of the Land Registration Act, 2012; Sections 3A and 63(e) of the Civil Procedure Act; Section 138(1) of the Registered Land Act (repealed)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Registered Trustees of the National Council of Churches of Kenya v Chief Land Registrar & 2 Others [2020] KEELC 2625 (KLR)", Case Analysis (2020). Misc. Application (Notice of Motion amended 10th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2625/eng@2020-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.