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ELCPartially AllowedOriginating Summons dated 16th February, 2019· [2021] KEELC 4203 (KLR)

Peter Nzesya Maithya v Chief Land Registrar & Land Registrar Makueni [2021] KEELC 4203 (KLR)

Environment and Land Court
2 March 2021
CMC.G. MBOGO
939 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered removal of a decades-old restriction on land, ruling stale Minister's appeals cannot justify blocking a title.

What this practically means

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Executive summary

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The Applicant, registered owner of land parcel Makueni/Kivani/1000, brought an Originating Summons seeking removal of a restriction registered against the title by the Chief Land Registrar and the Land Registrar, Makueni. He deposed that a 1989 dispute with four objectors was decided by the Land Adjudication Officer in Objection No. 342 of 1989, and that decision was upheld by the High Court in Miscellaneous Case No. 11 of 1990, leaving no basis for the restriction. The 2nd Respondent, through the affidavit of Caren Nyakundi, defended the restriction on the basis of a pending Minister's Appeal No. 87 of 1995, and argued that the Land Adjudication and Settlement Office, which advised registration of the restriction, had not been joined to the proceedings. The Court perused the 1994 High Court ruling, which had upheld the adjudication decision because the objectors failed to appeal within the 60-day window under the Land Adjudication Act. The Court found the alleged 1995 Minister's appeal unconvincing given the six-year delay, noted that the letter evidencing it did not specify the objection it related to, and observed that no ongoing appeal had been evidenced after some 30 years of litigation. Exercising its discretion under Section 78(2) of the Land Registration Act, the Court found for the Applicant on a balance of probabilities and allowed the summons in terms of prayers 2 and 4, ordering removal of the restriction and awarding the Applicant costs.

Key legal issues

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01

Whether the restriction on Makueni/Kivani/1000 should be removed

Holding

Yes - the alleged pending Minister's appeal was filed six years out of time and was dormant; the Court exercised its discretion under Section 78(2) of the Land Registration Act and ordered removal.

Reasoning

The High Court in Misc. Case No. 11 of 1990 had already upheld the Land Adjudication Officer's decision because the objectors failed to appeal within 60 days under the Land Adjudication Act. The Registrar's reliance on an alleged Minister's Appeal No. 87 of 1995 filed in 1995 over a 1989 dispute was unconvincing, and the letter did not specify which objection it related to. No evidence of an ongoing appeal existed, so no basis remained for the 2012 restriction.

p. 2

Legal principles established

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  • An appeal to the Minister under the Land Adjudication Act must be filed within 60 days of the determination of the objection; a purported appeal filed years later cannot justify a restriction on the title.

Court orders

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  1. 1.The 1st and 2nd Respondents to remove the restriction registered against parcel Makueni/Kivani/1000
  2. 2.The Respondents to pay the costs of the application

Authorities

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Legislation

  • Land Adjudication ActSection 28
  • Land Adjudication Act, Cap 284 Laws of KenyaSection 29
  • Land Registration ActSection 78(2)

Cases cited (1)

  • National Gender & Equality Commission (NGEC) v Independent Electoral & Boundaries Commission (IEBC) & 3 Others
    [2018] eKLR
Jurisdiction invoked
Section 78(2) of the Land Registration 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, "Peter Nzesya Maithya v Chief Land Registrar & Land Registrar Makueni [2021] KEELC 4203 (KLR)", Case Analysis (2021). Originating Summons dated 16th February, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4203/eng@2021-03-02

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