Diffu v Were (Environment and Land Appeal 6 of 2020) [2025] KEELC 5324 (KLR)

The Appellant asserted the properties measured 31 acres at Kshs.1 million per acre, exceeding the Magistrates' Court pecuniary cap. Under Section 109 of the Evidence Act, the burden of proving that fact lay on him. No valuation report was adduced, and the certificates of search showed a combined acreage of only 20.2 acres. The magistrate's finding that jurisdiction existed absent such evidence was upheld.

The Appellant argued a suit could only be commenced by plaint, petition or originating summons. The Court held the Respondent had filed no suit and needed none; Section 78(2) of the Land Registration Act empowers the Court, on application by an affected proprietor with notice to the Registrar, to order removal of a restriction. Citing wrong provisions is not fatal, and Article 159(2)(d) disfavours procedural technicalities. The magistrate properly distinguished conflicting superior court decisions on cautions.

Applying Mukisa Biscuit, a preliminary objection must raise a pure point of law on the assumption that all facts pleaded are correct, and cannot be raised if facts must be ascertained. Whether a suit was properly commenced was not such a pure point of law, so those limbs of the objection failed at the threshold.

Counsel for the Appellant stated in submissions that the properties were transferred to a third party after the ruling. No evidence rebutted that statement, and the Respondent did not deny it. The Court therefore held that allowing the appeal would serve no practical purpose as another person now owned the suit properties.

The magistrate surveyed conflicting High Court positions on whether a notice of motion can commence proceedings for removal of a caution or restriction, and distinguished the caution cases as dealing with a different statutory regime from restrictions. The Court held this was a legitimate exercise and rejected the complaint that the magistrate ignored the Appellant's authorities.