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ELCOtherEnvironment & Land Miscellaneous Case 50A of 2022· [2023] KEELC 16298 (KLR)

Munge v Naivasha Land Registrar; Kamau & 2 others (Interested Parties)

Environment and Land Court
16 March 2023
AOA O Ombwayo
1,718 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land cautions and restrictions should be removed by the Land Registrar after a hearing, not by the court on paper.

What this practically means

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Executive summary

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The applicant, Peter Kiongera Munge, moved the Environment and Land Court at Nakuru by notice of motion seeking orders directing the Naivasha Land Registrar to remove a caution lodged by Ruth Wanjiru Kamau and a restriction lodged by George Kimani Mwangi and Samuel Ng'ang'a Njuguna against parcel Gilgil/Karunga Block 3/241 (Shoka), together with permanent injunctions restraining further cautions, caveats or restrictions. The applicant's case was that he purchased the land from John Kamau Njuguna by agreement dated October 31, 1995, paid the full purchase price, and obtained a transfer and title deed on November 3, 1995, with a re-issued title in 2013; the caution and restriction were lodged on July 31, 2013, and the Registrar failed to act on his request. The interested parties replied that they never received notice of any intended removal, that the vendor died on October 31, 1995 after being killed by unknown persons, that no consent to sell matrimonial property was given, and that the Land Control Board consent predated the alleged agreement; investigations were said to be ongoing. The applicant asserted the vendor signed the agreement and transfer and that the death date was manipulated. Ombwayo J held that the Registrar is the right person to command removal of the caution and restriction, and that the contested question of who was taking advantage of the vendor's death could not be determined by way of notice of motion. The court ordered the Registrar to give notice, hear the parties and decide whether to remove the caution and restriction within six months, with each party bearing its own costs.

Key legal issues

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01

Removal of caution and restriction under the Land Registration Act

Holding

The court declined to remove the caution and restriction itself, instead directing the Registrar to give notice, hear the parties and determine whether to remove them within six months

Reasoning

Sections 73 and 78 of the Land Registration Act empower the Registrar, after notice and hearing, to remove cautions and restrictions, and the court may order removal upon application by a proprietor. The court found the Registrar the right person to command removal. Because the underlying facts were contested, the matter was remitted to the Registrar for a hearing rather than decided on the motion.

p. 7
02

Whether contested factual issues can be resolved by notice of motion

Holding

The court held it could not determine, on a notice of motion, who was taking advantage of the vendor's death

Reasoning

The interested parties alleged the vendor died on the date of the sale agreement and that no consent to sell matrimonial property was given, while the applicant asserted the vendor signed the agreement and transfer and that the death date was manipulated. The court found these competing narratives of possible fraud could not be resolved summarily on motion papers and required a proper hearing process.

p. 7

Legal principles established

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  • The Land Registrar is the proper officer to command the removal of a caution and restriction, and the court may direct the Registrar to hear the parties and decide under sections 73 and 78 of the Land Registration Act

Court orders

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  1. 1.The Naivasha Land Registrar to give notice to the parties to attend a hearing before him and decide whether to remove the caution and restriction or not
  2. 2.The Land Registrar Naivasha to determine the issue within six months from the date of the order
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Land Registration ActSection 73
  • Land Registration ActSection 78
Jurisdiction invoked
Sections 73 and 78 of the Land Registration Act, 2012 (removal of cautions and restrictions by order of the court)

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, "Munge v Naivasha Land Registrar; Kamau & 2 others (Interested Parties)", Case Analysis (2023). Environment & Land Miscellaneous Case 50A of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16298/eng@2023-03-16

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