Nancy Wanjiru Njagi v Land Registrar, Murang'a
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Preliminary Objection was properly raised
It failed because determining it would require investigation of facts surrounding High Court Civil Suit No 205 of 1993
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.
Whether the court could remove the restriction on the application
No - the applicant was bound to first apply to the Registrar under section 78(1); without that the court has no jurisdiction
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.
Legal principles established
#- 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
#- 1.Preliminary Objection dismissed
- 2.Notice of Motion application dated December 13, 2022 dismissed entirely with no orders as to costs
- Jurisdiction invoked
- Section 3 of the Environment and Land Court Act; Land Registration Act, sections 76, 78
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.