Moco Africa Limited v Attorney General & another; National Land Commission & another (Interested Parties) (Environment & Land Petition 10 of 2018) [2024] KEELC 205 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered the removal of a 14-year-old land restriction, ruling that titles cannot be restricted without first hearing the owner.
What this practically means
#Executive summary
#Key legal issues
#Whether the restriction placed on the Petitioner's title should be removed
Yes. The restriction was placed without notice or hearing in breach of section 136(1) of the repealed Registered Land Act and section 76 of the Land Registration Act; no fraud or improper dealing by the Petitioner was proved; and the restriction had endured 14 years with no concluded investigations. The court ordered its removal forthwith.
The Registrar may place a restriction to prevent fraud, improper dealings or for other sufficient cause, but must issue notices and hear affected persons. It was not denied the Petitioner was never heard. No evidence of fraud or improper dealing was adduced. The restriction was imposed at the NLC's application pending investigations that were never concluded, and could not exist indefinitely.
Whether the Petitioner's constitutional rights were violated
Yes. The right to property under Article 40 read with Article 260 was infringed, and the Petitioner was discriminated against under Article 27 since no other property owner on the same strip or equidistance was similarly restricted. The declarations sought were granted.
The court held it beyond doubt that the right to property was infringed, and that placing a restriction on the Petitioner's land alone while other similarly placed proprietors along Mombasa Road were unrestricted amounted to differential treatment without justification.
Whether general damages should be awarded
No. Although the Petitioner would have been entitled to damages, the party liable (the NLC) was before the court only as an Interested Party, not a principal party, so a substantive order for payment could not lie.
Relying on Methodist Church in Kenya v Mohammed Fugicha, the court held that the issues for determination remain those presented by the principal parties, and an Interested Party may not have substantive orders made against it. Damages were therefore refused.
Whether the petition was barred by res judicata by HCCC No. 399 of 2010
No. The previous suit was dismissed for want of prosecution and did not concern removal of the restriction; the elements of res judicata were not met.
The court recorded the Petitioner's position that the earlier suit, dismissed for non-attendance, was not about removal of the restriction and involved different parties. The court's final orders did not treat the petition as barred.
Legal principles established
#- A Land Registrar placing a restriction must first issue notices, direct inquiries and hear the affected proprietor; a restriction imposed without a hearing is tainted with procedural impropriety
- A restriction on a title is not to be maintained in perpetuity and a court may order its removal under Section 78(2) of the Land Registration Act
- A substantive order for payment of damages cannot be made against an Interested Party who is not a principal party before the court
Court orders
#- 1.A Declaration that the decision to place and the placing of the Restriction over LR No. Nairobi/Block 93/1418 without affording the Petitioner a prior opportunity to be heard, in contravention of section 136(1) of the repealed Registered Land Act, was a violation of the Law and unconstitutional
- 2.A Declaration that the placing of the Restriction without following section 136(1) of the repealed Registered Land Act and principles of natural justice violated the Petitioner's fundamental right to protection of property under Article 40 read with Article 260 of the Constitution
- 3.A Declaration that the placement of the Restriction only on the Petitioner's property, for reasons of being a buffer zone and or road reserve, yet not placing any restriction on the adjacent property, was discriminatory and contravened Article 27 of the Constitution
- 4.An Order of Mandatory injunction directed to the Respondents to remove the Restriction entered over LR No. Nairobi/Block 93/1418 on 25th November, 2009, within seven (7) days of service of the Decree
- 5.The Respondents shall bear the costs of the petition
- Jurisdiction invoked
- Constitutional petition under Article 23(3) of the Constitution; Articles 27, 40, 47 and 260 read with Section 76 and 78(2) of the Land Registration Act, 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moco Africa Limited v Attorney General & another; National Land Commission & another (Interested Parties) (Environment & Land Petition 10 of 2018) [2024] KEELC 205 (KLR)", Case Analysis (2024). Petition dated 5th February, 2018 (amended 4th March, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/205/eng@2024-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.