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ELCDismissedMiscellaneous Application E032 of 2022· [2023] KEELC 16000 (KLR)

Nancy Wanjiru Njagi v Land Registrar, Murang'a

Environment and Land Court
9 March 2023
3,056 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Before asking a Kenyan court to remove a land restriction, you must first apply to the Land Registrar — skipping that step will get your case dismissed.

What this practically means

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Executive summary

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The plaintiff, an administrator of the estate of Naftali Njagi Nyaga (registered proprietor of LOC 8/Matharite/32), filed a plaint and a Notice of Motion seeking removal of a restriction registered against the suit land in 1993, purportedly pursuant to an order in High Court Civil Suit No 205 of 1993, whose particulars were unavailable. The defendant raised a preliminary objection challenging the procedure adopted. The plaint was withdrawn and the preliminary objection and application canvassed concurrently by written submissions. Applying Mukisa Biscuits, IEBC v Cheperenger, Bhamra and Oraro v Mbaja, the court held the preliminary objection failed because determining it would require investigation of facts surrounding the 1993 suit. On the merits, the court distinguished restrictions (section 76, Land Registration Act, a Registrar's act) from inhibitions (section 68, a court's act), and held that under section 78 the Registrar is the first point of action for removal of a restriction, the court being a means of last resort. The applicant's letter of June 8, 2022 sought only details of the 1993 suit, not removal, so she had not exhausted the statutory procedure; the court therefore lacked jurisdiction. The court also questioned why the applicant, neither proprietor nor an heir per the grant, pursued the matter without co-administrator James Nyaga Njagi. Both the preliminary objection and the application were dismissed, with no orders as to costs.

Key legal issues

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01

Whether the Preliminary Objection was properly raised

Holding

It failed because determining it would require investigation of facts surrounding High Court Civil Suit No 205 of 1993

Reasoning

Applying Mukisa Biscuits, IEBC v Cheperenger, Bhamra and Oraro v Mbaja, the court held a preliminary objection must stem from pleadings and raise a pure point of law. Here the reason for the restriction and the party in whose favour it was drawn are unknown from the Certificate of Official Search, so facts must be ascertained. The objection was dismissed.

02

Whether the court could remove the restriction on the application

Holding

No - the applicant was bound to first apply to the Registrar under section 78(1); without that the court has no jurisdiction

Reasoning

Section 78(1) empowers the Registrar to remove or vary a restriction on application or suo moto; section 78(2) makes the court a fallback after notice to the Registrar. The applicant's letter of June 8, 2022 only sought details of the 1993 suit, not removal. The entry itself shows the restriction endures until discharged or an order in the 1993 suit. The application was premature.

p. 6

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed pleaded facts; it fails where facts must be ascertained or discretion exercised
  • Under section 78 of the Land Registration Act, the Registrar is the first point of action for removal of a restriction, and the court is a means of last resort
  • Restriction and inhibition are distinct interests issued by different bodies and cannot be used interchangeably

Court orders

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  1. 1.Preliminary Objection dismissed
  2. 2.Notice of Motion application dated December 13, 2022 dismissed entirely with no orders as to costs

Authorities

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Legislation

  • Land Registration Actsection 76
  • Land Registration Actsection 78
  • Land Registration Actsections 68, 69, 70
  • Land Registration Actsection 14
  • Registered Land Act (cap 300, repealed)section 136(1)
  • Environment and Land Court Actsection 3
  • Civil Procedure RulesOrder 50 rule 1
  • Constitution of KenyaArticle 159

Cases cited (6)

  • Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 others
    [2015] eKLR

    Expanded principles and rationale for preliminary objections

  • Avtar Singh Bhamra & another v Oriental Commercial Bank
    Kisumu HCCC No 53 of 2004

    Preliminary objection must stem from pleadings and be based on pure points of law

  • Oraro v Mbaja
    [2005] 1 KLR 141

    Preliminary objection must not deal with disputed facts or factual information

  • Joyce Waithira Mwangi vs Thika Land Registrar
    [2018] eKLR

    Restrictions ought not to be indefinite (relied on by applicant)

  • Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others
    [2015] eKLR

    Exhaustion of alternative dispute resolution mechanisms; courts as fora of last resort

Jurisdiction invoked
Section 3 of the Environment and Land Court Act; Land Registration Act, sections 76, 78

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, "Nancy Wanjiru Njagi v Land Registrar, Murang'a", Case Analysis (2023). Miscellaneous Application E032 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16000/eng@2023-03-09

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