Sigei & another v Chief Land Registrar Nakuru & 2 others (Environment & Land Case E51 of 2022) [2024] KEELC 354 (KLR)
The bottom line
#A Kenyan court ordered a decade-old restriction removed from private land because the person who placed it could not prove any legitimate claim to the property.
What this practically means
#Executive summary
#Key legal issues
#Whether the restriction registered over the suit parcel should be lifted
Yes; the Plaintiff, as registered proprietor, was entitled to removal of the restriction, and the 3rd Defendant failed to justify it
Section 76(1) of the Land Registration Act permits the Registrar to register a restriction for sufficient cause, while Section 78 permits removal by the Registrar or the court. The Plaintiff had written severally to the Registrar; the 3rd Defendant was given notice and an opportunity to be heard but failed to attend. He produced no sale agreement, transfer, or other evidence of his alleged purchaser's interest, and his own conviction for fraud relating to the land undermined his claim.
Burden of proving the alleged beneficial/purchaser's interest
The 3rd Defendant failed to discharge the burden under Section 107(1) of the Evidence Act
The 3rd Defendant claimed to have bought the suit land from Chesang Silita but did not produce the sale agreement, transfer documents, stamp duty payment receipt or search, and filed no counterclaim. Counsel's allegations of fraud in submissions were unsubstantiated. He also did not call any witness, including the Registrar, to explain the continuation of the restriction.
Whether special damages of Ksh.58,840/- were recoverable
Not proved and therefore not granted
Although pleaded in the plaint, the Plaintiff did not adduce specific proof of the special damages claimed. Special damages must be strictly proved; the court declined to award them but granted costs of the suit to the Plaintiff against the 3rd Defendant.
Legal principles established
#- A court has power under Section 78(2) of the Land Registration Act to remove a restriction on a title to land upon application by an affected proprietor where no sufficient justification for the restriction is shown
- Fraud cannot be alleged from the bar without being pleaded and supported by evidence
Court orders
#- 1.An order compelling the Land Registrar to lift the Restriction registered against land parcel number MITI MINGI/MBARUK/BLOCK 3/1736 (BARUT) on 19/04/2013 by Augustine Koros
- 2.The Plaintiff to follow up the procedures of loss and issuance of title with the Land Registrar
- 3.Costs of the suit to be paid by the 3rd Defendant
- Jurisdiction invoked
- Environment and Land Court Act No. 19 of 2011 (jurisdiction over disputes relating to title to land)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sigei & another v Chief Land Registrar Nakuru & 2 others (Environment & Land Case E51 of 2022) [2024] KEELC 354 (KLR)", Case Analysis (2024). Not stated in the excerpt (Plaint dated 19th September, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/354/eng@2024-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.