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ELCPartially AllowedPetition dated 23rd October, 2023 (Kisumu)· [2024] KEELC 6403 (KLR)

DLP Festive Limited v Land Registrar Kisumu & another (Environment & Land Petition E002 of 2023) [2024] KEELC 6403 (KLR)

Environment and Land Court
3 October 2024
EAE. Asati
2,083 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Kisumu Land Court lifted 2017 land restrictions, ruling the Registrar failed to follow due process, but refused to declare a constitutional violation.

What this practically means

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Executive summary

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Dpl Festive Limited petitioned the Environment and Land Court at Kisumu seeking lifting of restrictions registered in October 2017 against twelve parcels of land, Kisumu/Kogony/5124 to 5135, alleging that the Land Registrar had illegally and irregularly lodged the restrictions, violating its rights to property and fair administrative action under articles 10, 27, 28, 40 and 47 of the Constitution. Counsel framed four issues: violation of constitutional rights, lawfulness of the restrictions, whether they should be lifted, and costs. The Petitioner relied on Certificates of Official Search showing the restrictions, lodged on the stated ground that the plots overlapped a leasehold area, and cited authority on fair hearing before adverse administrative action. The Respondents denied that any restriction currently subsisted, explaining that a Regional Surveyor had by letter dated 14th April 2023 notified parties of an intention to expunge parcels created by fraudulent survey, and the affected registers had been kept in strong rooms. The court held that although restrictions had indeed been lodged in October 2017, the Petitioner produced no evidence that they remained in place at the time of filing, the burden of proof resting on the Petitioner. Nonetheless, there was no evidence of compliance with sections 76 and 77 of the Land Registration Act when the restrictions were lodged, and restrictions cannot subsist indefinitely. The court found the October 2017 restrictions were imposed without due process and, if still in place, ought to be lifted, and so ordered. The application dated 23rd October 2023 was overtaken by events, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the restrictions lodged in October 2017 were lawful

Holding

The restrictions were unlawfully placed without compliance with section 76 of the Land Registration Act and, if still in place, ought to be lifted

Reasoning

Section 76 empowers the Land Registrar to restrict dealings to prevent fraud or improper dealings or for sufficient cause, but only after inquiries, notices and hearings, and for a specified period or event. No evidence was led that these requirements were met when the restrictions were lodged in October 2017. Although the Registrar may have had sufficient cause given ongoing fraudulent-survey processes, due process was not followed, so the restrictions were unlawful and should be lifted if still subsisting.

p. 5
02

Whether the Petitioner proved the restrictions subsisted at the time of filing

Holding

No - the burden of proof rested on the Petitioner, and the searches produced were dated 2019 with no evidence of current status

Reasoning

The Petitioner claimed the restrictions had been in place for 7 years, but produced Certificates of Official Search dated 2019 only, with no records showing the status of the suit lands at the time of filing the petition or the Supplementary Affidavit. The Respondents denied any current restrictions. The burden of proving subsistence of the restrictions at filing lay with the Petitioner and was not discharged, undermining the claimed continuing violation of rights.

p. 4

Legal principles established

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  • Restrictions under section 76 of the Land Registration Act cannot be placed indefinitely and require compliance with procedural safeguards of inquiry, notice and hearing

Court orders

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  1. 1.The restrictions placed on the suit lands in October 2017 are hereby lifted
  2. 2.Each party to bear own costs
  3. 3.The Notice of Motion dated 23/10/2023 is overtaken by events

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 27, 28, 40, 47, 47(2), 50(1)
  • Land Registration ActSections 76, 77
  • Fair Administrative Actions ActSection 4(3)

Cases cited (3)

  • M W K & Another –vs- The A.G. & 3 Others
    [2017] eKLR
  • Anata Karimin Njeru –vs- The Republic
    (1976 – 1980) KLR 1272
  • Catherine Chepkemoi Mukenyang –vs- Evanson Pkemei Lomakuny & Another
    [2022] eKLR
Jurisdiction invoked
Constitutional petition under the Bill of Rights (articles 10, 27, 28, 40, 47) and the Land Registration Act, heard as a first-instance petition

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, "DLP Festive Limited v Land Registrar Kisumu & another (Environment & Land Petition E002 of 2023) [2024] KEELC 6403 (KLR)", Case Analysis (2024). Petition dated 23rd October, 2023 (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6403/eng@2024-10-03

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