Julia Muthoni Mburu v Sammy Muiruri Gitau & another [2021] KEELC 2665 (KLR)
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
#Key legal issues
#Whether the court should consider the issue of trust over Maragua Ridge
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.
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.
Whether the restriction of 1/8/2003 should be removed
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.
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.
Whether the prohibitory order of 14/1/1969 should be removed
Yes. The terms of the prohibition were undisclosed, it had subsisted over 50 years, no prejudice was shown, and the underlying claim was untraceable.
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.
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.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.Each party to meet their own costs of the application
- 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.