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ELCAllowedEnvironment & Land Case 117 of 2019 (Formerly Nakuru HC Civil Suit No 233 of 2006)· [2023] KEELC 16478 (KLR)

Mbugua (Suing as a representative of the Estate of the Late Mbugua Thuo) v Land Registrar, Nakuru; Muhoro & 15 others (Interested Parties)

Environment and Land Court of Kenya
22 March 2023
1,716 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ordered the Nakuru Land Registrar to release land registers and froze disputed Molo parcels until an estate's ownership claim is decided.

What this practically means

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Executive summary

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This ruling by FM Njoroge, J of the Environment and Land Court at Nakuru determined the applicant's Notice of Motion dated February 7, 2023 in a long-running land dispute (formerly Nakuru HC Civil Suit 233 of 2006). The applicant, suing as representative of the estate of the late Mbugua Thuo, claimed ownership of parcels Mau Summit/Molo Block 625 and 626 (Tayari), which a joint report of the Land Registrar and District Surveyor dated July 5, 2018 confirmed had been redrawn and subdivided into numerous Mau Summit/Molo Block 7 parcels. He sought an order compelling the Land Registrar, Nakuru to provide the current registers of those parcels, and a restriction against the parcels pending hearing and determination, alleging the alleged owners might dispose of them, causing irreparable harm. The respondent filed grounds of opposition, contending the application was incompetent, that the applicant had not applied and paid the requisite statutory fee under the Land Registration Act, that there was non-disclosure of material facts, and that the Land Registrar was not a party to the suit and had not been served with pleadings. The applicant relied on Charles Omanga & 8 others v Attorney General [2004] eKLR, submitting he had requested the information by letter dated January 27, 2023 which went unanswered. The court framed a single issue: whether the application had merit. Finding the applicant's request a reasonable approach to the litigation - the registers would help him decide whether to proceed, add or remove defendants - the court held he had laid a proper basis and granted the application in terms of prayers 2, 3 and 4: production of the registers, a restriction on the parcels until determination, and costs in the cause. Certified copies were to be filed within 14 days, with service and an affidavit of service, and the suit was set for mention on April 26, 2023.

Key legal issues

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01

Whether the applicant was entitled to an order compelling the Land Registrar to produce current registers of the disputed parcels

Holding

Yes. The joint report of the Land Registrar and District Surveyor dated July 5, 2018 confirmed the parcels emanated from plots 625 and 626 (Tayari), and the information would assist the applicant in deciding whether to proceed with the suit or amend parties.

Reasoning

The court noted the prior order of May 30, 2018 directing the Land Registrar to identify the parcels on the ground, and the resulting joint report confirming that plots 625 and 626 were redrawn and subdivided into the enumerated parcels. The applicant sought the registers to determine whether to proceed with the suit as filed, add defendants or remove some. The court found this a reasonable litigation approach and a proper basis for granting the orders.

p. 4
02

Whether a restriction should issue against the subdivided parcels pending hearing and determination

Holding

Yes. The applicant alleged irreparable harm as the alleged owners might dispose of the parcels pending final determination; the court granted the restriction in terms of prayer 3.

Reasoning

The applicant deposed that he would suffer irreparable harm should the court not prohibit activities on the parcels, as the alleged owners might dispose of them pending final determination. The court, having found a proper basis laid for the application, granted prayers 2, 3 and 4, which included the restriction against the alleged owners, their agents and assignees until the matter is heard and determined.

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Whether the respondent's objections (non-payment of statutory fees, non-disclosure, non-joinder of the Land Registrar) defeated the application

Holding

The court did not uphold the objections; it granted the application despite them.

Reasoning

The respondent raised grounds of opposition that the application was incompetent, that the applicant had not applied and paid the requisite fee under the Land Registration Act, that there was non-disclosure of material facts, and that the Land Registrar was not a party to the suit. The court did not expressly resolve each ground but found the applicant had laid a proper basis and granted the application in terms of prayers 2, 3 and 4.

p. 4

Legal principles established

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  • Where a claimant alleges ownership of land that a Land Registrar's and Surveyor's joint report confirms was subdivided into identified parcels, the claimant has laid a proper basis to compel production of the current registers of those parcels and to obtain a restriction pending determination.

Court orders

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  1. 1.The Land Registrar, Nakuru compelled to provide the current register of the enumerated Mau Summit/Molo Block 7 parcels (prayer 2)
  2. 2.An order of restriction issued against the enumerated parcels from the alleged owners, their agents, assignees or persons working under their instructions until the matter is heard and determined (prayer 3)
  3. 3.Costs of the application to be in the cause (prayer 4)
  4. 4.Certified copies of the said documents to be filed by the Land Registrar in the court file within 14 days of the order
  5. 5.The applicant to serve the order forthwith and file an affidavit of service to demonstrate compliance
  6. 6.Suit to be mentioned on April 26, 2023 for further directions

Authorities

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Legislation

  • Land Registration ActSection 7(2)
  • Land Registration ActSection 76(1)

Cases cited (1)

  • Charles Omanga & 8 others v Attorney General and another
    [2004] eKLR

    Before compelling access to information, an applicant must show the information was first requested from the custodian.

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels within Nakuru (ELC Case 117 of 2019, transferred from Nakuru HC Civil Suit 233 of 2006)

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, "Mbugua (Suing as a representative of the Estate of the Late Mbugua Thuo) v Land Registrar, Nakuru; Muhoro & 15 others (Interested Parties)", Case Analysis (2023). Environment & Land Case 117 of 2019 (Formerly Nakuru HC Civil Suit No 233 of 2006). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16478/eng@2023-03-22

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