Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case (Murang'a) — Notice of Motion dated 8/3/2021· [2021] KEELC 2665 (KLR)

Julia Muthoni Mburu v Sammy Muiruri Gitau & another [2021] KEELC 2665 (KLR)

Environment and Land Court
5 July 2021
2,647 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court removed two decades-old land encumbrances blocking an estate's distribution, confirming old restrictions cannot last forever.

What this practically means

#

Executive summary

#
The Applicant, sole administrator of the estate of Gitau Murage following the rectified grant in Nairobi Succession Cause No. 791 of 2004, moved the Court to lift a prohibitory order lodged on 14/1/1969 pursuant to Nairobi Civil Suit No. 2 of 1969 (now untraceable) and a restriction lodged on 1/8/2003 pursuant to Murang'a SPM No. 112 of 2003 on parcel LOC.7/ICHAGAKI/635, which blocked transmission and distribution of the estate. The Respondents, brothers of the Applicant's late father, opposed, contending the succession was procured secretly and without locus, and that they held a beneficial interest in Maragua Ridge Settlement Scheme No. 56 which should first be determined. The Court framed three issues: the trust question, removal of the registrations, and costs. On trust, it held the matter res judicata, the High Court having found on 2/6/2011 that plot 56 Maragua Ridge was not family property, with no appeal preferred. On the restriction, it held that the underlying suit having been dismissed for want of prosecution — which is as good as a final judgment — the restriction was spent. On the prohibition, its terms were undisclosed, it had subsisted over 50 years, the Respondents showed no prejudice, and an encumbrance cannot last in perpetuity. The Court, empowered by section 70 of the Land Registration Act, allowed the application in its entirety and, given the family relationship, ordered each party to bear their own costs. Judgment delivered at Murang'a on 5 July 2021 by J G Kemei, Judge.

Key legal issues

#
01

Whether the court should consider the issue of trust over Maragua Ridge

Holding

The trust issue was conclusively determined by the High Court on 2/6/2011 and is res judicata; the Respondents did not appeal and the court is bound by that order.

Reasoning

The High Court in Nairobi Succ No. 791 of 2004 found that plot No. 56 Maragua Ridge was not family property and was not held in trust for the family. The Respondents participated in those proceedings and never appealed or applied to set aside the order. Under Order 7 of the Civil Procedure Rules the matter directly and substantially in issue was heard and finally decided, so the issue cannot be reopened before this Court.

p. 2
02

Whether the restriction of 1/8/2003 should be removed

Holding

Yes. The restriction was to endure until the determination of Murang'a SPM No. 112 of 2003, which was dismissed for want of prosecution, so the restriction is spent and should be removed.

Reasoning

Section 76 of the Land Registration Act provides that restrictions endure for a particular period, until an event occurs, or until a further order. The restriction was lodged to restrain dealings until the case was finalized. The suit was dismissed for want of prosecution on 25/2/2021, which is a final determination, and there was no evidence the orders were set aside or appealed. The restriction is therefore spent.

p. 3
03

Whether the prohibitory order of 14/1/1969 should be removed

Holding

Yes. The terms of the prohibition were undisclosed, it had subsisted over 50 years, no prejudice was shown, and the underlying claim was untraceable.

Reasoning

The entry did not disclose what it prohibited or for how long. Section 70 of the Land Registration Act allows cancellation by court order. The Respondents' objection rested on the Maragua Ridge trust issue already settled in 2011, and they demonstrated no prejudice from removal; they stand to benefit from distribution of the estate. A prohibition cannot last in perpetuity and leaving it over 50 years was unjust.

p. 4

Legal principles established

#
  • A dismissal for want of prosecution is as good as a final judgment unless set aside
  • A prohibition as an encumbrance on land cannot last in perpetuity
  • Res judicata bars re-litigation of an issue finally decided between the same parties

Court orders

#
  1. 1.The District Registrar Murang'a ordered/authorized to remove/lift the prohibitory order lodged on 14/11/1969 and the restriction lodged on 1/8/2003 on land parcel LOC.7/ICHAGAKI/635
  2. 2.Each party to meet their own costs of the application

Authorities

#

Legislation

  • Law of Succession ActSection 79
  • Civil Procedure RulesOrder 7
  • Land Registration ActSection 76
  • Land Registration ActSection 68
  • Land Registration ActSection 70
  • Land Registration ActPart Seven

Cases cited (4)

  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited
    Nairobi Civ App No. 107 of 2010 [2017] eKLR
  • Njue Ngai v Ephantus Njiru Ngai & another
    Civ App No. 29 of 2015 [2016] eKLR
  • David Macharia Kinyuru v District Land Registrar, Naivasha & another
    Nakuru Misc App No. 331 of 2016 [2017] eKLR
  • Dorcas Muthoni & 2 others v Michael Ireri Ngari
    Embu ELC No. 324 of 2015 [2016] eKLR
Jurisdiction invoked
Sections 68, 70 and 76 of the Land Registration Act read with section 79 of the Law of Succession Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Julia Muthoni Mburu v Sammy Muiruri Gitau & another [2021] KEELC 2665 (KLR)", Case Analysis (2021). ELC Case (Murang'a) — Notice of Motion dated 8/3/2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2665/eng@2021-07-05

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