Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedELC Appeal (Thika) – Appeal against Ruling in ELC Misc 7 of 2019· [2021] KEELC 3916 (KLR)

Lillian Wakiiya Mwaura & 2 others v Chief Land Registrar [2021] KEELC 3916 (KLR)

Environment and Land Court
25 March 2021
LGL. Gacheru
3,169 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed land restrictions cannot last forever, especially where owners were never notified, and ordered their immediate removal.

What this practically means

#

Executive summary

#
The Appellants, registered proprietors since 1992 of titles Nguirubi/Thigio/1566, 1567 and 1568, filed a Notice of Motion in ELC Misc 7 of 2019 at Thika seeking removal of restrictions registered in 2005 stating 'no dealings until boundary dispute is sorted out and determined.' No notice had been served on them when the restrictions were placed, the Kiambu Land Registry held no record of who lodged them, and the Land Registrar ignored their removal applications. The trial Magistrate declined to remove the restrictions outright, instead directing the Appellants to advertise their intention in a nationwide newspaper and post notices on the suit lands and with the area Chief, reasoning that an unknown interested party deserved a hearing. On appeal, the Environment and Land Court at Thika, sitting as a first appellate court under Section 78 of the Civil Procedure Act, re-assessed the evidence. Applying Selle vs Associated Motor Boat Co., it held that Sections 76, 77 and 78 of the Land Registration Act obliged the Registrar to notify affected proprietors before registering restrictions; that the Appellants' rights were violated; that the Registrar, duty-bound to resolve boundary disputes under Section 18(2), had taken no steps for 13 years; and that imposing advertising obligations on the Appellants was an unjudicious exercise of discretion. The court wholly set aside the ruling of 22nd August 2019, allowed the appeal entirely, and ordered forthwith removal of the restrictions by the Land Registrar Kiambu. No costs order was made.

Key legal issues

#
01

Whether the trial court erred in directing the Appellants to advertise and notify an unknown party before removal of restrictions

Holding

The trial court's discretion was not exercised judiciously; the Appellants were entitled to unconditional removal of the restrictions

Reasoning

The Land Registrar registered the restrictions in 2005 without notifying the registered owners as required by Sections 76, 77 and 78 of the Land Registration Act. No records identified who placed the restrictions, no boundary dispute was pursued, and the Registrar, though served, did not oppose. Placing the burden of finding the unknown restricter on the proprietors was far-fetched and the obligations imposed were enormous given they were never heard before registration. Restrictions cannot endure forever.

p. 4
02

Whether the Land Registrar complied with the Land Registration Act in registering and maintaining the restrictions

Holding

The Registrar failed to follow the law by not notifying the owners before placing the restrictions, violating their rights

Reasoning

Section 77(1) of the Land Registration Act requires the Registrar to give written notice of a restriction to the affected proprietor. The Appellants' title deeds were issued in 1992, so they were registered owners at the time of the 2005 restrictions, yet no evidence showed they were ever informed. The Registrar also ignored their removal applications of December 2018 and had no records of who lodged the restrictions, while the mandate to determine boundary disputes lies with the Registrar under Section 18(2).

p. 4

Legal principles established

#
  • Restrictions on title cannot endure indefinitely; a proprietor affected by a restriction may apply to court under Section 78 of the Land Registration Act for removal
  • The Registrar must give notice to the proprietor affected before registering a restriction; failure to notify violates the proprietor's rights
  • On a first appeal the court re-analyses and re-assesses the evidence and reaches its own independent decision

Court orders

#
  1. 1.The Appeal is allowed entirely and the Ruling and Orders of the trial court issued on 22nd August 2019 are set aside
  2. 2.Forthwith removal of the restrictions placed against the Appellants' title numbers Nguirubi/Thigio/1566, Nguirubi/Thigio/1567 and Nguirubi/Thigio/1568 by the Land Registrar Kiambu
  3. 3.Judgment delivered virtually online with parties' consent, waiving compliance with Order 21 rule 1 of the Civil Procedure Rules

Authorities

#

Legislation

  • Land Registration ActSections 76, 77, 78, 18(2)
  • Civil Procedure ActSection 78
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (3)

  • David Macharia Kinyuru vs District Land Registrar Naivasha & Anor
    (2017) eKLR
  • Selle vs Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
On appeal from
Magistrate's Court (Environment and Land jurisdiction), Thika
ELC Misc 7 of 2019
Jurisdiction invoked
First appeal from the subordinate court under Section 78 of the Civil Procedure Act; powers under Section 78 of the Land Registration Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Lillian Wakiiya Mwaura & 2 others v Chief Land Registrar [2021] KEELC 3916 (KLR)", Case Analysis (2021). ELC Appeal (Thika) – Appeal against Ruling in ELC Misc 7 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3916/eng@2021-03-25

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