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ELCAllowedOriginating Summons dated 1st March 2021· [2022] KEELC 3089 (KLR)

Nasca Housing Co-operative v Land Registrar Machakos & 4 others (Environment and Land Miscellaneous Application E018 of 2021) [2022] KEELC 3089 (KLR)

Environment and Land Court
30 May 2022
COChristine Ochieng
2,013 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court lifted a land restriction because the Land Registrar never notified or heard the landowner before registering it.

What this practically means

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Executive summary

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The Applicant filed an Originating Summons dated 1st March 2021 seeking removal of restrictions placed on land parcel Donya Sabuk/Komarock Block 1/47826 ('the suit land'). The Applicant, through its Chairman Aggrey Odhiambo Mukolwe, claimed to be the beneficial owner, having purchased the land from the registered owner Mutinda Mutisya Kyule under a sale agreement dated 7th May 2014, and exhibited consent to transfer, valuation report, transfer documents, stamp duty and transfer fee payment evidence. It alleged it was never notified before the restrictions were registered, contrary to Sections 76 and 77 of the Land Registration Act and Article 40 of the Constitution. The 1st and 2nd Respondents filed Grounds of Opposition contending they acted lawfully under Section 76 and that the Applicant had not tendered sufficient evidence for removal. Three cautioners were later enjoined as 3rd, 4th and 5th Respondents by an application dated 25th October 2021, and served by substituted service in the East African Standard on 13th November 2021, but did not enter appearance. The court framed one issue: whether the restriction should be lifted. Relying on Matoya v Standard Chartered Bank and David Macharia Kinyuru, the court held that notice before registering a restriction is mandatory, not discretionary. The Registrar did not confirm issuing notice, conducting inquiries or hearing parties. The Applicant had registered a purchaser's caution in 2015 and held all requisite transfer documents; the cautioners and vendor filed no controverting evidence. The court found the restriction served no useful purpose, allowed the Originating Summons, directed the restriction be lifted forthwith, and ordered each party to bear its own costs.

Key legal issues

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01

Whether the restriction on the suit land should be lifted

Holding

Yes. The Registrar did not issue notice, conduct inquiries or hear parties before registering the restriction as required by Section 76 of the Land Registration Act; the cautioners and vendor did not controvert the Applicant's averments, and the restriction served no useful purpose.

Reasoning

Section 76 requires the Registrar to direct inquiries, serve notices and hear affected persons before imposing a restriction; this is mandatory. The Registrar did not confirm compliance. The Applicant held the requisite transfer documents including consent to transfer and proof of stamp duty and transfer fees, and had itself registered a purchaser's caution in 2015. The cautioners, duly served by substituted service, and the vendor filed no response. The restriction therefore had no continuing utility and was lifted forthwith.

p. 5

Legal principles established

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  • Issuance of notice to the owner or interested party over suit land where a restriction is placed is mandatory and not discretionary.
  • A restriction should not remain indefinitely; it holds the property in abeyance pending resolution of the underlying dispute, and where no suit is filed the restriction ought to be lifted.

Court orders

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  1. 1.The restriction placed on land parcel Donyo Sabuk/Komarock Block 1/47826 be lifted forthwith
  2. 2.The Originating Summons dated 1st March 2021 is allowed in its entirety
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Land Registration ActSection 24
  • Land Registration ActSection 76
  • Land Registration ActSection 77
  • Land Registration ActSection 78
  • Constitution of Kenya, 2010Article 40

Cases cited (7)

  • Mukuria James Chacha & 2 Others vs Land Registrar Murang'a
    (2019) eKLR
  • David Macharia Kinyuru vs District Land Registrar, Naivasha & Another
    (2017) eKLR
  • Ericklyne Mbugua Omanwa & another vs Edward Peter Njoroge & 2 others
  • John Kamau Kinyanjui v Thika District Registrar
    (2017) eKLR
  • Mwangi Rukwaro & another V Land Registrar, Nyeri
    (2019) eKLR
  • Matoya Vs Standard Chartered Bank (K) Ltd & others
    (2003) I EA 140
  • Satnam Sing Chana & another v Jutendra Trikamdas Swualy & another
    [2021] eKLR
Jurisdiction invoked
Section 78(2) of the Land Registration Act, 2012 - application of a proprietor affected by a restriction for its removal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nasca Housing Co-operative v Land Registrar Machakos & 4 others (Environment and Land Miscellaneous Application E018 of 2021) [2022] KEELC 3089 (KLR)", Case Analysis (2022). Originating Summons dated 1st March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3089/eng@2022-05-30

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