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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 9th January, 2020)· [2021] KEELC 2817 (KLR)

Ericklyne Mbugua Omanwa & another v Edward Peter Njoroge & 2 others [2021] KEELC 2817 (KLR)

Environment and Land Court
15 June 2021
COCHRISTINE OCHIENG
2,247 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that a land restriction cannot block a court-declared owner, ruling police investigations cannot override a court's ownership decision.

What this practically means

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Executive summary

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The Applicants, registered proprietors of land parcels KJD/KITENGELA/19747 and KJD/KITENGELA/19746, moved the Environment and Land Court at Kajiado by Notice of Motion dated 9th January, 2020 seeking a declaration that a restriction lodged by the 2nd Respondent's agents on 2nd July, 2019 was illegal, an order directing the Land Registrar, Kajiado to remove it unconditionally, and an order directing the DCI to investigate the DCIO Rongai Police Station. They relied on a judgment in Kajiado ELC Case No. 76 of 2017 delivered on 25th February, 2018 declaring them absolute proprietors and ordering eviction of the 1st Respondent, a trespasser. The 1st Respondent contended he had purchased and occupied 10 acres since 1996 and that the restriction preserved his claim against the vendor pending DCI investigations into obtaining money by false pretences. The 2nd and 3rd Respondents, through the Investigating Officer GODFREY GICHOHI, maintained the restriction was properly placed to preserve the suit lands pending investigations. The single issue was whether the restriction should be lifted. Relying on Sections 76 and 78 of the Land Registration Act and Sections 3A and 63(e) of the Civil Procedure Act, the court held that the Applicants' ownership had been judicially determined; the restriction could not subsist indefinitely; and a police investigation cannot supersede a court's determination. The application was allowed with costs to the Applicants: the restriction was declared illegal and the Land Registrar was ordered to remove it immediately and unconditionally. The prayer for investigation of the DCIO was not included in the final orders.

Key legal issues

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Whether the restriction placed on the suit parcels should be lifted

Holding

The application was merited; the restriction was declared illegal and ordered removed because the Applicants' ownership had already been judicially determined

Reasoning

The court noted that the Applicants had been declared absolute proprietors of the suit lands in Kajiado ELC Case No. 76 of 2017, yet the 1st Respondent lodged a fresh complaint with the DCI in 2019 without appealing or seeking review of that judgment. Under Sections 76 and 78 of the Land Registration Act the court has discretion to order removal of a restriction on application by a proprietor affected. A restriction cannot subsist indefinitely. A police investigation cannot supersede a competent court's determination of ownership, and lifting the restriction served the ends of justice under Sections 3A and 63(e) of the Civil Procedure Act.

p. 3

Legal principles established

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  • Investigation by a Police Officer cannot supersede an order of the Court where the Court has already made a determination over ownership of land
  • A restriction cannot subsist indefinitely and a court is mandated to remove it where a competent court has already determined ownership

Court orders

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  1. 1.A declaration that a restriction filed by the 2nd Respondent's employees, servants and/or agents against land parcels No. KJD/KITENGELA/19747 and KJD/KITENGELA/19746 on 2nd July, 2019 is illegal and amounts to interference with legally binding court orders
  2. 2.An order directing the Land Registrar, Kajiado to immediately and unconditionally remove the restrictions on land parcel Nos. KJD/KITENGELA/19747 and KJD/KITENGELA/19746
  3. 3.The costs of the application awarded to the Applicants

Authorities

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Legislation

  • Land Registration ActSection 76
  • Land Registration ActSection 78
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63(e)
  • Criminal Procedure CodeSection 210

Cases cited (5)

  • Commissioner of Police & Anor V Kenya Commercial Bank Limited & 4 Others
    (2013) eKLR
  • Martha Chelal & Another V Elijah Kipkemoi Boiywo & 2 Others
    (2019) eKLR
  • John Muthusi Mweke Vs Mosoi P. Parkut
    (2020) eKLR
  • Republic Vs Kenya Revenue Authority Ex Parte Yaya Towers Limited
    (2008) eKLR
  • Joyce Cherop Kaspandoy & 609 Others Vs Kenya Power & Lighting Company
    (2019) eKLR
Jurisdiction invoked
Sections 78(2) of the Land Registration Act; Sections 3A and 63(e) of the Civil Procedure Act

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, "Ericklyne Mbugua Omanwa & another v Edward Peter Njoroge & 2 others [2021] KEELC 2817 (KLR)", Case Analysis (2021). Not stated in the judgment (Notice of Motion dated 9th January, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2817/eng@2021-06-15

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