Samuel Machua Mbachia v Land Registrar, Kiambu County [2021] KEELC 2256 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court may order removal of a restriction under Section 78(2) of the Land Registration Act
The court has discretion to order removal of a restriction, to be exercised judicially; on the facts the restriction was unjustified and was ordered removed
Section 78(2) of the Land Registration Act empowers the court, on application by an affected proprietor and notice to the Registrar, to order a restriction removed, varied or make other orders with costs. The discretion must be exercised judicially. The Applicant was the registered owner when the restriction was placed in 2003, was never notified, the underlying suit HCCC No. 535 of 2003 did not exist in the Kiambu High Court registry, and no reasons were given for the restriction enduring for over a decade.
Whether the Land Registrar's failure to notify the owner before registering the restriction violated his rights
Yes - the Land Registrar did not follow the law by failing to notify the owner before placing the restriction
The Applicant held title from 2002 and was the registered owner when the restriction was registered on 9th June 2003. There was no evidence he was ever informed or alerted before the restriction was registered, and the register did not disclose the parties to the purported suit, denying him due diligence. The Court held his rights were violated.
Whether the burden lay on the Land Registrar to justify the restriction
Yes - having been served and given no reasons, the Registrar bore the onus of justifying the restriction's continuation
The Applicant discharged his responsibilities by serving the Land Registrar. If there were any reason why the restriction ought not to be removed, the Land Registrar was the person to give such reasons. The Registrar filed no response despite due service, and no reasons were tendered for the restriction enduring over a decade, so the Court found no reason for it to remain.
Legal principles established
#- Upon application by a proprietor affected by a restriction and upon notice to the Registrar, the court may order a restriction to be removed, varied or other orders as it deems fit and may make an order as to costs
- A proprietor has a right to be informed of the registration of a restriction before it is registered on his title
- Restrictions are not supposed to endure indefinitely on a title
Court orders
#- 1.the restriction placed on Title Number Muguga Jet Scheme 2280 to be removed forthwith
- 2.the Notice of Motion Application dated 29th January 2021 allowed entirely with costs being in the cause
- Jurisdiction invoked
- Sections 68, 70, 76 & 78 of the Land Registration Act 2012; Articles 50 and 159 of the Constitution; Sections 1A, 1B, 3A, 79G, 95 and 100 of the Civil Procedure Act; Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Machua Mbachia v Land Registrar, Kiambu County [2021] KEELC 2256 (KLR)", Case Analysis (2021). Miscellaneous Application (Notice of Motion dated 29th January 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2256/eng@2021-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.