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ELCDismissedNot stated in the judgment (appeal from Embu ELC Case No. 66 of 2021)· [2025] KEELC 6006 (KLR)

Beth Ndorongo t/a Beth Ndorongo & Co Advocates v Ndung’u (Environment and Land Appeal E011 of 2023) [2025] KEELC 6006 (KLR)

Environment and Land Court

9 September 2025

KBK. Bor

1,187 words in judgment

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The bottom line

What this practically means

Executive summary

This is an appeal from the judgment of Hon J.A Otieno, Senior Resident Magistrate, in Embu ELC Case No. 66 of 2021, delivered on 5/7/2023, in which the trial court ordered the Land Registrar, Embu to remove a restriction the Appellant advocate had lodged over the Respondent's land, Ngandori/Kirigi/5551. The Appellant argued she acted for her client, John Kimani Kamau, who should have been sued instead, and faulted the trial court for proceeding without notice to the Land Registrar as required by Section 78(2) of the Land Registration Act. K. Bor, J, framed a single issue: whether the appeal had merit. The court held it did not. The Appellant disclaimed any personal interest in the land and did not call her client to justify the restriction; moreover, her letter of 20/8/2013 referenced a different parcel, Kagaari/Kigaa/7564, in the name of Joseph Kamau Njeru, so there was no evidence she was instructed to restrict the Respondent's land at all. On the statutory argument, the court held Section 78(1) is permissive, not mandatory, and that while joining the Land Registrar is unnecessary, service of notice on the Registrar under Section 78(2) is required - noting that no such notice was in fact issued. On costs, the court applied Section 27 of the Civil Procedure Act: costs follow the event, and the successful Respondent was entitled to them. The appeal was dismissed with costs, affirming the trial judgment. The court did not otherwise disturb the decision below.

Key legal issues

Whether the trial court erred in removing the restriction when the Appellant acted for an undisclosed client

Holding

No error; the onus lay on the Appellant to call her client, and her failure meant the defence offered no rebuttal

Reasoning

It was not disputed that the Appellant's firm lodged the restriction. She claimed to act for John Kimani Kamau, but neither called him as a witness nor joined him. The letter she produced referred to a different parcel (Kagaari/Kigaa/7564) in another name, so there was no evidence she was instructed to restrict the Respondent's land. Restrictions protect interests temporarily; with no demonstrated basis, removal was proper.

p. 2

Whether the Land Registrar is the only proper authority, and whether failure to give him notice vitiated the proceedings

Holding

Section 78(1) is permissive; the court has jurisdiction under Section 78(2), but notice to the Registrar was required - and here none was issued, though non-joinder of the Registrar was not fatal

Reasoning

The Appellant argued only the Registrar could remove restrictions. The court held Section 78(1) is permissive and Section 78(2) confers jurisdiction on the court. However, Section 78(2) requires notice to the Registrar; the record showed no such notice was issued. Joining the Registrar is unnecessary, but the statutory notice requirement stands as a procedural condition.

p. 3

Whether the Appellant, acting on her client's instructions, could escape costs

Holding

No; costs follow the event and the Respondent, as the successful party, was entitled to costs

Reasoning

The Appellant contended she was merely executing client instructions and no notice of intention to sue was given. The court applied the general rule under Section 27 of the Civil Procedure Act that costs follow the event, and since the Respondent succeeded at trial, he was entitled to the costs of the suit.

p. 3

Legal principles established

Section 78(1) of the Land Registration Act is permissive, not mandatory
A court may order removal of a restriction under Section 78(2) without joining the Land Registrar as a party, but must be shown that notice was served on the Registrar
A person who lodges a restriction on behalf of a client bears the duty of presenting that client to justify the restriction
Costs follow the event under Section 27 of the Civil Procedure Act

Court orders

1.Appeal dismissed with costs
2.Trial court's judgment directing the Land Registrar, Embu to remove the restriction over Ngandori/Kirigi/5551 upheld

Authorities

Legislation

Land Registration ActSection 76(2)
Land Registration ActSection 78(1) and (2)
Land Registration (General) Regulations, 2017Regulations 81(4) & (5)
Civil Procedure ActSection 27

On appeal from: Senior Resident Magistrate's Court, Embu (ELC jurisdiction); Embu ELC Case No. 66 of 2021
Jurisdiction invoked: First appeal against the judgment of the magistrates' court in land matter (statutory appellate jurisdiction; no specific provision cited)

Key timeline

Practical implications

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Cite this brief

Caselaw, "Beth Ndorongo t/a Beth Ndorongo & Co Advocates v Ndung’u (Environment and Land Appeal E011 of 2023) [2025] KEELC 6006 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Embu ELC Case No. 66 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6006/eng@2025-09-09

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