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ELCAllowedOriginating Summons dated 12/09/2019 (Kisumu)· [2021] KEELC 2156 (KLR)

Sultan Khan aka Khan Sultan Ali & another v Ethics & Anti-Corruption Commission & another [2021] KEELC 2156 (KLR)

Environment and Land Court
16 July 2021
AOANTONY OMBWAYO
2,133 words in judgment
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The bottom line

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A Kenyan court ordered removal of an EACC restriction on private land because the anti-corruption agency failed to justify it in court.

What this practically means

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Executive summary

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Sultan Ali Khan and Muhammed Adil filed an Originating Summons dated 12/09/2019 under sections 76, 77 and 78 of the Land Registration Act and Order 37 Rule 7 of the Civil Procedure Rules 2010, seeking removal of a restriction lodged by the Ethics and Anti-Corruption Commission over KISUMU/MUNICIPALITY BLOCK 11/145 on 28 March 2017. The plaintiffs purchased the property from M/s Hayer Bishan Singh & Sons Ltd for Kshs 66,500,000 in July 2016 and were registered on 30 August 2016, later charging it for Kshs 90,000,000. They alleged due diligence confirmed a clean title, the National Land Commission had cleared the parcel and gazetted its removal from the list of irregularly acquired land, and the Director of Public Prosecutions had authenticated the title. Demands to the EACC and Registrar went unanswered. Though both defendants entered appearance, neither filed a response nor submissions. Antony Ombwayo J framed a single issue: whether the restriction should be removed. He held that the EACC's stated ground - illegal acquisition of public land - did not hold water given the NLC clearance, that the EACC had filed nothing to justify the restriction or update the status of its investigations, and that the Registrar did not appear to defend his position. Applying section 78(2) and following David Macharia Kinyuri v District Land Registrar Naivasha & Another (2017) eKLR, the court allowed the application and ordered the Land Registrar Kisumu County to remove the restriction. Judgment was delivered electronically on 16 July 2021 due to COVID-19 directives.

Key legal issues

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01

Whether the EACC restriction lodged on the suit property should be removed under section 78 of the Land Registration Act

Holding

Yes; the restriction was unjustified. The NLC had cleared the title, the EACC filed no response or evidence of ongoing investigations, and the plaintiffs as registered proprietors were entitled to an order for removal under section 78(2).

Reasoning

Section 76(1) permits restrictions only for prevention of fraud, improper dealing or other sufficient cause. The stated basis - illegal acquisition of public land - was contradicted by the NLC letter of 26 March 2015 and Gazette Notice No. 2406 clearing the title. The EACC did not respond, explain the status of its investigations, or defend the restriction, and the Registrar did not appear. Following David Macharia Kinyuri v District Land Registrar Naivasha & Another, the restriction had to be removed.

p. 3

Legal principles established

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  • Where an affected proprietor applies under section 78(2) of the Land Registration Act and no party appears or justifies the restriction, the court may order its removal.

Court orders

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  1. 1.The Land Registrar Kisumu County to remove the restriction on land parcel number KISUMU/MUNICIPALITY BLOCK 11/145

Authorities

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Legislation

  • Land Registration Actsections 76(1), 77, 78(1), 78(2)
  • Civil Procedure Rules 2010Order 37 Rule 7

Cases cited (1)

  • David Macharia Kinyuri v District Land Registrar Naivasha & Another
    (2017) eKLR
Jurisdiction invoked
Sections 76, 77 and 78 of the Land Registration Act and Order 37 Rule 7 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Sultan Khan aka Khan Sultan Ali & another v Ethics & Anti-Corruption Commission & another [2021] KEELC 2156 (KLR)", Case Analysis (2021). Originating Summons dated 12/09/2019 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2156/eng@2021-07-16

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