Teresia Mabuti Njagara v Njagara Ngure (Environment & Land Case 256 of 2013) [2021] KEELC 2094 (KLR)

Environment and Land Court

23 July 2021

ECE.C. Cherono

1,688 words in judgment

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The bottom line

The court directed the Land Registrar, not itself, to remove a land restriction because only registered owners can ask the court directly.

What this practically means

Executive summary

The Plaintiff/Applicant, who obtained a judgment on 20th April 2015 directing equal subdivision of matrimonial properties including LR Nthawa/Riandu/1834, moved the Court by Notice of Motion dated 08.02.2021 seeking orders that the Land Registrar Siakago remove a restriction placed by the Respondent on that parcel and dispense with production of the original title deed, to give effect to the decree. The application was unopposed despite service on the Respondent's advocates. The court analysed Section 78 of the Land Registration Act, holding that court-ordered removal of a restriction is available only to a proprietor of the affected land; since the parcel is registered in the Respondent's name alone, the Applicant must pursue removal through the Registrar under Section 78(1). On the second prayer, the court, relying on Section 31 and authorities including In re Estate of Phillip Kiogo Tunga and Bethwel Mwangi Githinji, held that the discretion to dispense with production of an original title deed lies with the Registrar and does not require a court order; the Applicant should request it in writing and only move the court upon refusal. The court declined to grant the prayers as framed, instead directing the Land Registrar Siakago to exercise his powers under Sections 78(1) and 31(1), with costs borne by the Applicant. Delivered physically at Kerugoya on 23rd July 2021 by E.C. Cherono, ELC Judge.

Key legal issues

Court's power to remove a restriction under Section 78 of the Land Registration Act

Holding

The court's power under Section 78(2) is available only to a proprietor; the Applicant is not a proprietor since the suit land is registered in the Respondent's name, so the Registrar-led route under Section 78(1) applies

Reasoning

Section 78 provides two routes for removal of restrictions: by the Registrar on application by any interested person, or by the court on application of an affected proprietor. 'Proprietor' is defined in Section 2 as a person named in the register. As the suit land is registered solely in the Respondent's name, the court-led route is unavailable to the Applicant, and the Registrar cannot claim his hands are tied.

p. 2

Dispensing with production of the original title deed under Section 31

Holding

The discretion lies with the Land Registrar and no court order is required; the Applicant should request it in writing and only come to court if the Registrar refuses

Reasoning

Section 31(1) permits the Registrar to dispense with production of a certificate of title. Supported by In re Estate of Phillip Kiogo Tunga and Bethwel Mwangi Githinji, the court held registrars should exercise this statutory discretion, failing which mandamus may lie. The proper procedure is a written request to the Registrar, with recourse to the court only upon refusal.

p. 3

Legal principles established

A court may order removal of a restriction under Section 78(2) of the Land Registration Act only on the application of a proprietor of the affected land; a non-proprietor must invoke the Registrar's power under Section 78(1)
The discretion to dispense with production of an original title deed rests with the Land Registrar under Section 31(1), and its exercise does not depend on a court order; a party should apply in writing to the Registrar first and approach the court only if the discretion is refused

Court orders

1.The Land Registrar Siakago is directed to exercise the powers provided under Section 78(1) and Section 31(1) of the Land Registration Act, No. 3 of 2012

Authorities

Legislation

Land Registration ActSection 78(1) and 78(2)
Land Registration ActSection 31(1), (2) and (3)
Land Registration ActSection 2 (definition of proprietor)
Land Registration ActSection 14 (as cited in In re Estate of Phillip Kiogo Tunga)

Cases cited (2)

In re Estate of Phillip Kiogo Tunga (Deceased)
[2020] eKLR
Bethwel Mwangi Githinji & 2 others v Harrison Wachira Wanjohi & another
[2019] eKLR

Jurisdiction invoked: Section 78 of the Land Registration Act, No. 3 of 2012 (court's power to order removal of a restriction upon application by a proprietor)

Key timeline

Practical implications

Frequently asked questions

Later judgments citing this (1)

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Maina v Kibubungi & 2 others (Environment and Land Case E036 of 2023) [2026] KEELC 2179 (KLR)
[2026] KEELC 2179 (KLR)16 Apr 2026

Cite this brief

Caselaw, "Teresia Mabuti Njagara v Njagara Ngure (Environment & Land Case 256 of 2013) [2021] KEELC 2094 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2094/eng@2021-07-23

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