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ELCAllowedOriginating Summons dated 25th November, 2021· [2024] KEELC 180 (KLR)

Kingdom Bank Limited v Land Registrar – Kisumu & 2 others (Originating Summons E42 of 2021) [2024] KEELC 180 (KLR)

Environment and Land Court
25 January 2024
EAE. Asati
1,653 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court ordered removal of decade-old land restrictions, confirming landowners and lenders must be notified before restrictions are placed.

What this practically means

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Executive summary

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The applicant, a Chargee with a chargee's interest in parcels Kisumu/Kanyadwera/3975 and 3976, brought an Originating Summons under sections 3A and 65(e) of the Civil Procedure Act and sections 76, 77, 78(2), 18(2) and 19 of the Land Registration Act seeking removal of restrictions placed on the parcels on 11th November 2014 by the 2nd Respondent pending investigations. The 1st and 2nd Respondents opposed through grounds of opposition filed by the Attorney General, contending the restrictions were lawfully placed to inhibit fraudulent transactions; the 3rd Respondent, though served, did not respond. The matter proceeded by affidavit evidence and written submissions. The court framed three issues: the procedure prior to placement of the restrictions, the lawfulness of their duration, and whether the charged properties had become a commodity for sale. On the first issue, the court held that under section 77(1) of the Land Registration Act notice of a restriction is mandatory and the Chargee, whose rights would be fettered, was entitled to notice; the procedure was therefore not followed. On duration, the restriction had endured roughly ten years with no evidence of ongoing investigations, and the Registrar had failed to respond to the applicant's removal request. Relying on Lillian Wakiiya Mwaura and Mukuria James Chacha, the court held restrictions cannot endure indefinitely. The Originating Summons was allowed: the Land Registrar, Kisumu was ordered to forthwith remove the restrictions, with each party bearing its own costs.

Key legal issues

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01

Whether the right procedure was followed prior to the restrictions being placed

Holding

No - the applicant as Chargee was entitled to notice before the restrictions were placed; the failure to give notice contravened section 77 of the Land Registration Act

Reasoning

Sections 76 and 77 of the Land Registration Act govern the placing of restrictions. Section 77(1) obliges the Registrar to give written notice of a restriction to the affected proprietor, and this requirement is mandatory. Although the land was registered in the 3rd Respondent's name, it had been charged to the applicant. The restriction would limit the applicant's rights as Chargee under section 77(2). The court, relying on articles 10 and 47 of the Constitution, section 4(3) of the Fair Administrative Actions Act and the Nasca Housing case, found the procedure was not followed.

p. 3
02

Whether the duration of the restrictions is lawful

Holding

The restrictions, in place since 11th November 2014 with no evidence of ongoing investigations, could not endure indefinitely and had to be removed

Reasoning

Section 76(2) permits a restriction to endure for a particular period, until the occurrence of a particular event, or until a further order. The restriction here was to last until investigations by the DCIO were completed, but after about ten years there was no evidence that investigations were ongoing, what they concerned, or their progress. The Registrar also failed to respond to the applicant's request for removal. Following Lillian Wakiiya Mwaura and Mukuria James Chacha, the court held restrictions cannot endure forever.

p. 4

Legal principles established

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  • Notice of a restriction to the proprietor affected is mandatory under section 77 of the Land Registration Act
  • A restriction cannot remain in force indefinitely
  • A Chargee is entitled to notice of placement of a restriction since it fetters the Chargee's rights

Court orders

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  1. 1.The Land Registrar, Kisumu to forthwith remove the restrictions placed on land parcels known as Kisumu/Kanyadwera/3975 and Kisumu/Kanyadwera/3976
  2. 2.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure Actsections 3A, 65(e)
  • Land Registration Actsections 18(2), 19, 24, 76(1), 76(2), 77(1), 77(2), 78(1), 78(2)
  • Constitution of Kenya, 2010articles 10, 47
  • Fair Administrative Actions Actsection 4(3)

Cases cited (3)

  • Nasca Housing Co-operative Society Limited v The Land Registrar Machakos & 4 Others
    ELC Misc. Application No. E018 of 2021
  • Lillian Wakiiya Mwaura & 2 others v Chief Land Registrar
    [2021] eKLR
  • Mukuria James Chacha & 2 others v Land Registrar Muranga
    [2019] eKLR
Jurisdiction invoked
Sections 3A and 65(e) of the Civil Procedure Act and sections 76, 77, 78(2), 18(2) & 19 of the Land Registration Act

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, "Kingdom Bank Limited v Land Registrar – Kisumu & 2 others (Originating Summons E42 of 2021) [2024] KEELC 180 (KLR)", Case Analysis (2024). Originating Summons dated 25th November, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/180/eng@2024-01-25

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