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ELCAllowedEnvironment & Land Miscellaneous Case 2 of 2022· [2022] KEELC 12740 (KLR)

Awiti (Suing as the Administrator of the estate of Esau Onyango Awiti) v Onyango & another

Environment and Land Court
29 September 2022
EAE. Asati
2,478 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that land restrictions cannot sit indefinitely and ordered one removed after eight years of inaction.

What this practically means

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Executive summary

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The applicant, administrator of the estate of Esau Onyango Awiti, moved the court by notice of motion dated January 13, 2020 under section 78 of the Land Registration Act, Order 51 rule 1 of the Civil Procedure Rules and sections 1A and 3A of the Civil Procedure Act, seeking removal of a restriction lodged on December 24, 2014 by the 1st respondent over land parcel West Bunyore/Ekwanda/2061. He explained that succession was complete, the grant confirmed on November 13, 2015, and the suit land distributed to Phoebe Awiti Onyango, but the restriction prevented transmission to the beneficiary. The 1st respondent raised a preliminary objection contending the court lacked jurisdiction, that the court should be a last resort for removal of restrictions, and that the claim was substantive and improperly brought as a miscellaneous application. The court framed four issues: jurisdiction, procedure, merit, and costs. Applying the Owners of the Motor Vessel 'Lillian S' principle, it held it had jurisdiction under section 78(2) of the Land Registration Act, which empowers the court on a proprietor's application to order removal of a restriction. It found the miscellaneous application procedure correct and unprejudicial. On the merits, noting the restriction had stood for about eight years with no step by the respondent to assert her interest, and that a restriction is a temporary measure under section 76 of the LRA that cannot exist indefinitely, the court found no reason to sustain it. The application was allowed, the restriction ordered removed, with each party bearing own costs.

Key legal issues

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01

Jurisdiction to remove a restriction under section 78(2) LRA

Holding

The court has jurisdiction under section 78(2) of the Land Registration Act to entertain an application by a proprietor affected by a restriction.

Reasoning

The application was brought under section 78(2) of the Land Registration Act, which expressly empowers the court, upon application of a proprietor affected by a restriction and notice to the Registrar, to order removal or variation. The preliminary objection on jurisdiction therefore failed.

p. 3
02

Correctness of procedure (miscellaneous application)

Holding

Commencing the claim by a notice of motion in a miscellaneous application was procedurally correct.

Reasoning

Section 78(2) contemplates that the court be approached by way of application; Order 51 governs motions, and sections 1A and 3A of the Civil Procedure Act enjoin effect to the overriding objective. No prejudice is caused to the respondent, who may reply to the application.

p. 4
03

Merits of removal of the restriction

Holding

The restriction lodged in 2014 should be removed as it had persisted for about eight years with no steps by the respondent to assert any interest.

Reasoning

The suit land was distributed to Phoebe Awiti Onyango in confirmed succession proceedings, yet the restriction prevented transmission. A restriction is a temporary measure under section 76 of the LRA; the respondent had taken no step to assert her interest since 2014, and its continued existence was an injustice.

p. 5

Legal principles established

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  • Under section 78(2) of the Land Registration Act, the court may, on application by a proprietor affected by a restriction, order its removal or variation and make an order as to costs.
  • A restriction on the land register is a temporary measure and cannot exist indefinitely.

Court orders

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  1. 1.The restriction placed on land parcel No West Bunyore/Ekwanda/2061 registered as entry No 3 and lodged on December 24, 2014 by Teresa Obala Onyango be removed
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Land Registration Actsection 78(1) and (2)
  • Land Registration Actsection 76(1) and (2)
  • Civil Procedure Actsection 1A
  • Civil Procedure Actsection 3A
  • Civil Procedure RulesOrder 51 rule 1

Cases cited (2)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1

    Locus classicus on jurisdiction: a court downs its tools the moment it holds it is without jurisdiction.

  • David Macharia Kinyuru v District Land Registrar, Naivasha & another
    Nakuru ELC Misc Appl No 331 of 2016

    A restriction is temporary and should not remain indefinitely; it holds property in abeyance pending resolution of the underlying issue.

Jurisdiction invoked
Section 78(2) of the Land Registration Act; sections 1A and 3A of the Civil Procedure Act; Order 51 rule 1 of the Civil Procedure Rules

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, "Awiti (Suing as the Administrator of the estate of Esau Onyango Awiti) v Onyango & another", Case Analysis (2022). Environment & Land Miscellaneous Case 2 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/12740/eng@2022-09-29

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