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ELCStruck OutKilgoris ELC Case (Notice of Motion dated 12th November 2024)· [2025] KEELC 5562 (KLR)

Basi v Directorate of Criminal Investigation & 2 others; Basi (Interested Party) (Environment and Land Miscellaneous Case E009 of 2024) [2025] KEELC 5562 (KLR)

Environment and Land Court
28 July 2025
1,432 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A landowner challenging a DCI-backed restriction on his Transmara title lost because he skipped the statutory procedure under the Land Registration Act before going to court.

What this practically means

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Executive summary

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The Applicant, Ole Ketuno Ole Yiasi, registered owner of parcel Transmara/Ololchani/1673, moved the court by Notice of Motion dated 12th November 2024 seeking a declaration that a restriction placed on the parcel at the instance of the 1st Respondent (the DCI, through a letter of 4th October 2024) was illegal and an order compelling the Land Registrar to remove it. He argued that the matter of the parcel had already been determined in Kilgoris ELC Case No. 36/2021, whose judgment was delivered on 16th January 2023, and that the complainant - Joseph Leteipa Ole Basi, later joined as Interested Party - who lost that suit, had instead lodged a complaint with the DCI and filed Kilgoris Land Petition No. E007/2024. The 1st Respondent, through Inspector Kennedy Mulei Ndeto, justified the restriction on the basis of ongoing investigations into alleged fraudulent subdivision of parcel Transmara/Ololchani/124 and boundary discrepancies contrary to adjudication records. The Interested Party submitted that the application was premature because the Applicant had not exhausted the procedure under Section 78(1) of the Land Registration Act before invoking Section 78(2), relying on Anna Chesaina Kenduiywa v Nandi County Land Registrar and Mwangi Rukwaro v Land Registrar, Nyeri. The court found arguable merit in the Applicant's complaint that the restriction undermined a court determination and that the DCI had no mandate to instruct the Registrar. However, it held that the statutory procedure under Sections 73 and 78(1) had to be exhausted first, declined jurisdiction, and struck out the application, directing that removal of the restriction await the outcome of Petition No. E007/2024. Costs were awarded to the Respondents. Scandalous allegations impugning the ELC No. 36/2021 judgment were expunged from the record.

Key legal issues

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Whether the application under Section 78(2) of the Land Registration Act was merited despite the prior judgment in Kilgoris ELC No. 36/2021

Holding

Although the Applicant raised an arguable point that the DCI-imposed restriction undermined a prior court determination, the court declined jurisdiction because the Applicant had not exhausted the statutory mechanism under Sections 73 and 78(1) of the Land Registration Act. The application was struck out without considering the merits, and removal of the restriction was left to await the outcome of the pending Petition No. E007/2024.

Reasoning

The court observed that the subject matter of the application was the same as in the concluded ELC No. 36/2021 and the pending Land Petition No. E007/2024. It held that a dissatisfied party should appeal rather than lodge a criminal complaint, but that the Applicant, in turn, was required to first exhaust the alternative dispute-resolution procedure under Sections 73 and 78(1) of the Land Registration Act before invoking Section 78(2).

p. 4
02

Whether the 1st Respondent had power to instruct the Land Registrar to place a restriction on the suit property

Holding

The court found arguability and merit in the contention that the DCI had no mandate to instruct the Registrar to register the restriction, but declined to decide the point on the merits due to non-exhaustion.

Reasoning

The court noted that the Applicant's affidavit raised an arguable claim that the restriction contradicted the judgment in ELC No. 36/2021, and that the 1st Respondent had 'no mandate whatsoever' to instruct the Registrar. Nevertheless, since the statutory exhaustion requirement had not been met, the court did not pronounce itself on the merits.

p. 4

Legal principles established

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  • A party dissatisfied with a court's determination must prefer an appeal rather than lodge a complaint with the DCI, since ownership and occupation of land are for the ELC to determine.
  • The statutory procedures under Sections 73 and 78(1) of the Land Registration Act must be exhausted before applying to court under Section 78(2).

Court orders

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  1. 1.The Application dated 12th November 2024 is struck out
  2. 2.The removal of the restriction shall abide by the outcome of Petition No. E007/2024
  3. 3.Paragraph 8 of the Replying Affidavit of Inspector Kennedy Mulei Ndeto (scandalous allegations that the judgment in Kilgoris ELC No. 36/2021 was predetermined) is expunged from record
  4. 4.Costs to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3, 3A and 63(e)
  • Land Registration ActSections 73, 78(1) and 78(2)
  • Civil Procedure RulesOrder 51(1) and (3)
  • Constitution of Kenya
  • National Police Service Act

Cases cited (2)

  • Anna Chesaina Kenduiywa v Nandi County Land Registrar
    [2022] eKLR
  • Mwangi Rukwaro and Another v Land Registrar, Nyeri
    [2019] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act; Section 78(2) of the Land Registration Act; Order 51(1) and (3) of the Civil Procedure Rules

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, "Basi v Directorate of Criminal Investigation & 2 others; Basi (Interested Party) (Environment and Land Miscellaneous Case E009 of 2024) [2025] KEELC 5562 (KLR)", Case Analysis (2025). Kilgoris ELC Case (Notice of Motion dated 12th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5562/eng@2025-07-28

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