Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in the judgment (Notice of Motion dated 28th November, 2023)· [2024] KEELC 6234 (KLR)

Mitugo v Lands Registrar, Marimanti (Environment & Land Case E005 of 2023) [2024] KEELC 6234 (KLR)

Environment and Land Court
25 September 2024
CYC.K Yano
2,417 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court confirmed landowners can directly ask the court to remove unfair restrictions on their land titles without first going through the land registrar.

What this practically means

#

Executive summary

#
The applicant, registered proprietor of LR N. Tharaka/Marimanti/664, moved the court by Notice of Motion dated 28th November 2023 under Section 78 of the Land Registration Act, 2012 and Section 3A of the Civil Procedure Act, seeking removal of a restriction entered as Entry No. 3 on 5.4.2004, which barred dealings pending determination of an appeal to the Minister from land adjudication proceedings. A second restriction (Entry No. 4, tied to Nairobi High Court Misc. Civil Application No. 572 of 2004) had already been lifted by the Registrar after the applicant's advocates demanded removal. The Minister had rendered his verdict and the High Court struck out the applicant's challenge to it without appeal. The Registrar lifted Entry No. 4 but refused to remove Entry No. 3. The respondent opposed via grounds of opposition, contending the application was defective, that the statutory procedure under Section 78(1) had not been exhausted, and that the court lacked jurisdiction, judicial review being the proper avenue. Counsel filed written submissions. The court framed the issue as whether the applicant was entitled to the orders sought. Holding that Section 78(2) expressly confers jurisdiction on the court to remove restrictions on application by an affected proprietor, the court rejected the jurisdictional objection. It found the restriction event-based, the event having occurred, and no good reason advanced for its retention. The application was allowed as prayed, the restriction lifted, and the applicant awarded costs. Judgment delivered at Chuka on 25th September 2024 by C.K Yano, J.

Key legal issues

#
01

Whether the court has jurisdiction to remove a restriction under Section 78 of the Land Registration Act

Holding

The court has jurisdiction under Section 78(2); the respondent's jurisdictional objection was rejected.

Reasoning

The motion was anchored on Section 78 of the Land Registration Act, 2012. Section 78(2) expressly provides that upon application by a proprietor affected by a restriction, and upon notice to the Registrar, the court may order the restriction removed, varied or make other orders including costs. Given this express statutory grant, the respondent's submission that the court lacked jurisdiction, or that only the Registrar could remove restrictions, was misplaced and was rejected.

p. 4
02

Whether the restriction entered as Entry No. 3 ought to be lifted

Holding

Yes - the restriction was event-based and the event (determination of the Minister's appeal) had occurred, with no reason shown for its retention.

Reasoning

Entry No. 3, registered on 5.4.2004, provided for no dealings until the appeal to the Minister was heard. The Minister rendered his verdict, and the consequent High Court Miscellaneous Application No. 572 of 2004 was struck out with no appeal. The Registrar lifted Entry No. 4 but refused to lift Entry No. 3 without advancing any good reason. The court found the restriction had served its purpose and should be removed.

p. 5

Legal principles established

#
  • Under Section 78(2) of the Land Registration Act, the court has jurisdiction to order removal of a restriction placed on a title upon application by a proprietor affected by the restriction.
  • A restriction registered to endure until the occurrence of a stated event should be lifted once that event has occurred.

Court orders

#
  1. 1.The restriction registered against Land Reference Number N. Tharaka/Marimanti/664 entered as Entry Number 3 is lifted and/or removed
  2. 2.The applicant is awarded costs of the application

Authorities

#

Legislation

  • Civil Procedure RulesOrder 51 Rule 1 & 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land Registration Act, 2012Section 78
  • Constitution of Kenya 2010Article 159
  • Constitution of Kenya 2010Article 40
  • Land Registration ActSection 76(2) (referred to by applicant as Section 76(2) of the Land Act)

Cases cited (8)

  • Daniel Macharia Kanyura Vs. District Land Registrar & Another
    Nakuru ELC Misc. Application No. 331 of 2016
  • Mwangi Rukwaro and Another Vs. Land Registrar Nandi
    (2019) eKLR
  • Anna Chesaina Kenduiywa Vs. Nandi County Land Registrar
    (2022) eKLR
  • John Kamau Kinyanjui Vs. Thika District Land Registrar
    (2017) eKLR
  • Nyaga Nderi Vs. James Nyaga Kinyua
    (2021) eKLR
  • Speaker of the National Assembly Vs. James Njenga Karume
    (1992) eKLR
  • Mutanga Tea & Cofiee Company Ltd. Vs. Shikara Ltd. & Another
    (2015) eKLR
  • Geofirey Muthinja Kabiru & 2 Others Vs. Samuel Munga Henry & 1756 Others
    (2015) eKLR
Jurisdiction invoked
Section 78(2) of the Land Registration Act, 2012 and Section 3A of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mitugo v Lands Registrar, Marimanti (Environment & Land Case E005 of 2023) [2024] KEELC 6234 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 28th November, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6234/eng@2024-09-25

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