Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedMeru ELC Miscellaneous Application (Notice of Motion dated February 1, 2022)· [2022] KEELC 3401 (KLR)

Kiogora & 5 others v The National Land Commission & another (Originating Summons E002 of 2022) [2022] KEELC 3401 (KLR)

Environment and Land Court
18 May 2022
1,368 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Meru dismissed an application to sue over old land restrictions because the landowners never first asked the Land Registrar to remove them.

What this practically means

#

Executive summary

#
The applicants sought leave under Order 37 Rule 6 of the Civil Procedure Rules as read with sections 27 and 28(1) of the Limitation of Actions Act to file a suit out of time against the Chief Land Registrar and the National Land Commission for removal of restrictions imposed between 2001 and 2005 on L.R No. Ntima/Igoki/5985, 5591, 5998, 5990 and 5995. They asserted they only discovered the restrictions in 2021 during loan processing, and that the restrictions, imposed without notice or fair hearing, infringed their constitutional right to property. The respondents opposed, arguing the applicants failed to demonstrate the tort requirement under section 27(1), the 17-year delay was inordinate, no demand was issued, and Meru ELC No. 14 of 2021 had been withdrawn after limitation was raised. The court reviewed sections 76 to 78 of the Land Registration Act on the placing, notification and removal of restrictions, and observed the applicants never formally wrote to the Chief Land Registrar seeking reasons for the restrictions or their vacation, whereas the statute makes the registrar the first port of call before court is invoked. The court noted the search certificates showed the land was reserved for a public works camp, that no replying affidavit explained the restrictions, and that a necessary party (the Chief Land Registrar) had not been sued. It further held that submissions cannot replace pleadings, and the supporting affidavit was scanty on material facts. The application was dismissed with no orders as to costs.

Key legal issues

#
01

Extension of time to sue in tort under section 27 of the Limitation of Actions Act

Holding

The application failed because the supporting affidavit was scanty and the statutory pre-condition of first approaching the Land Registrar was not satisfied

Reasoning

The court noted that no evidence showed the applicants had formally written to the Chief Land Registrar seeking reasons for the restrictions or their vacation as required by sections 77 and 78 of the Land Registration Act. The affidavit in support lacked material facts, and facts brought in only via written submissions had no legal effect. The restrictions also had an apparent public purpose, being placed on property reserved as a public works camp.

p. 3
02

Procedure for removal of land restrictions

Holding

The first priority in law is for the Land Registrar to handle the matter before escalation to court under section 78(2) of the Land Registration Act

Reasoning

The court reviewed sections 76, 77 and 78 of the Land Registration Act, which empower the registrar to place, and upon application or own motion after hearing affected parties, to remove or vary restrictions. Since the applicants never invoked this administrative route, resorting to court was premature and the application lacked merit.

p. 3

Legal principles established

#
  • A proprietor affected by a restriction must first invoke the Land Registrar's statutory mechanism under section 78(1) of the Land Registration Act before invoking the court's jurisdiction
  • Submissions cannot replace pleadings; facts introduced only in submissions have no legal effect

Court orders

#
  1. 1.The originating summons is dismissed
  2. 2.No orders as to costs

Authorities

#

Legislation

  • Limitation of Actions Actsections 27, 28(1)
  • Public Authorities Actlimitation period of 1 year
  • Civil Procedure RulesOrder 37 Rule 6
  • Land Registration Actsections 76, 77, 78(1), 78(2)

Cases cited (8)

  • Julius Njuguna Mwangi (suing on behalf of the estate of Mwangi Mura (deceased) vs Kariuki Kamau Mbiuki and 4 others
    (2020) eKLR
  • David Macharia Kinyaru v District land registrar Naivasha & another
    Nakuru ELC Misc. Application no. 331 of 2016
  • Joyce Waithira Mwangi v Thika Land Registrar
    (2018) eKLR
  • Nyaga Nderi v James Nyaga Kinyua
    (2021) eKLR
  • Gideon Sitelu Konchella v Julius Lekany Ole Sunkuri & 2 others
    (2018) eKLR
  • Matoya v Standard chartered bank (K) Ltd & others
    (2003) IEA 240
  • Republic v Registrar of land Kiambu County
    (2015) eKLR
  • Mukuria James Chacha and 2 others v Land Registrar Muranga
    (2019) eKLR
Jurisdiction invoked
Order 37 Rule 6 Civil Procedure Rules as read with sections 27 and 28(1) of the Limitation of Actions Act, and sections 76-78 of the Land Registration Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kiogora & 5 others v The National Land Commission & another (Originating Summons E002 of 2022) [2022] KEELC 3401 (KLR)", Case Analysis (2022). Meru ELC Miscellaneous Application (Notice of Motion dated February 1, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3401/eng@2022-05-18

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