Kiogora & 5 others v The National Land Commission & another (Originating Summons E002 of 2022) [2022] KEELC 3401 (KLR)
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
#Key legal issues
#Extension of time to sue in tort under section 27 of the Limitation of Actions Act
The application failed because the supporting affidavit was scanty and the statutory pre-condition of first approaching the Land Registrar was not satisfied
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.
Procedure for removal of land restrictions
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
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.
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.The originating summons is dismissed
- 2.No orders as to costs
- 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.