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ELCAllowedOriginating Summons dated 10th March, 2025· [2025] KEELC 5291 (KLR)

In re Sumac Microfinance Bank Ltd (Environment and Land Miscellaneous Application E003 of 2025) [2025] KEELC 5291 (KLR)

Environment and Land Court
16 July 2025
1,282 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determined an Originating Summons dated 10th March 2025 by Kimetu Villa Enterprises Limited seeking removal of a restriction placed by the Regional Surveyor, Nakuru, over land parcel Nakuru/Rare/Gichobo/2313. The Applicant, a chargee holding a valid charge over the parcel, deponed that the chargor had defaulted on loan obligations and that realization of the security was frustrated by the restriction. Its advocates wrote three letters dated 13th September 2024, 28th October 2024 and 20th November 2024 to the Land Registrar, Nakuru, seeking removal of the restriction, but no action was taken and no reasons furnished. Counsel relied on Sections 76, 77 and 78 of the Land Registration Act and several authorities. The Land Registrar was served with the Summons but neither responded nor appeared. The court, applying Section 78, held that it has discretion to remove a restriction where the Registrar has failed to comply with Section 78(1), and that such discretion must be exercised judicially. Following the Markerryl, Joyce Waithira Mwangi and John Kamau Kinyanjui decisions, the court found the application merited and allowed it as prayed. The Land Registrar, Nakuru, was ordered to lift the restriction within 14 days, failing which it stands removed by the order, with costs to the Applicant.

Key legal issues

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01

Whether the court should remove the restriction placed on Nakuru/Rare/Gichobo/2313

Holding

The application was allowed; the Land Registrar was ordered to lift the restriction within 14 days, failing which it stands removed.

Reasoning

The court noted the Registrar's power under Section 78(1) of the Land Registration Act to remove a restriction after hearing affected parties, and the court's power under Section 78(2). The Applicant wrote three letters seeking removal of the restriction lodged by the Regional Surveyor, but the Land Registrar neither acted nor furnished reasons. The Registrar was served but neither responded nor appeared to justify the restriction. The court exercised its discretion judicially, found the application merited, and allowed it as prayed.

p. 3

Legal principles established

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  • Upon application of a proprietor affected by a restriction, the court may order the restriction removed, varied or make such other order as it deems fit where the Registrar has failed to act.

Court orders

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  1. 1.The Land Registrar, Nakuru, is ordered to lift the Restriction placed on the property known as Nakuru/Rare/Gichobo/2313 within 14 days failure to which it stands removed by the order
  2. 2.Costs to the Applicant

Authorities

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Legislation

  • Land Registration ActSection 76
  • Land Registration ActSection 77
  • Land Registration ActSection 78(1)
  • Land Registration ActSection 78(2)

Cases cited (6)

  • David Macharia Kinyuru vs District Land Registrar, Naivasha & Another
    [2017]
  • Ahmed Ibrahim Suleiman and Another vs Noor Khamisi Surur
    [2013] eKLR
  • Mwangi Rukwaro & Another vs Land Registrar Nyeri
    [2019] eKLR
  • Republic v Land Registrar, Nyeri County Registry & another; Markerryl Company Limited (Exparte Applicant)
    [2025] KEELC 2928 (KLR)
  • Joyce Waithira Mwangi v Thika Land Registrar
    [2018] eKLR
  • John Kamau Kinyanjui v Thika District Land Registrar
    [2017] KEELC 714 (KLR)
Jurisdiction invoked
Section 78(2) 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, "In re Sumac Microfinance Bank Ltd (Environment and Land Miscellaneous Application E003 of 2025) [2025] KEELC 5291 (KLR)", Case Analysis (2025). Originating Summons dated 10th March, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5291/eng@2025-07-16

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