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ELCAllowedNot stated in the judgment· [2025] KEELC 7178 (KLR)

Wanjiku & 2 others v Mwaniki (Environment and Land Case 289 of 2018) [2025] KEELC 7178 (KLR)

Environment and Land Court
9 October 2025
1,312 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Thika ordered removal of a 23-year-old restriction on private land, confirming that unexplained restrictions cannot block a registered owner indefinitely.

What this practically means

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Executive summary

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The Applicant, Richard Njuguna Mwaniki, moved the Environment and Land Court at Thika by Notice of Motion dated 25 July 2023 under Order 51 Rule 1 of the Civil Procedure Rules and Sections 1, 1A, 3 and 3A of the Civil Procedure Act, seeking lifting of a restriction registered against land parcel Kabete/Nyathuna/1522 on 13 September 2002, and raising orders directing the Kiambu Land Registrar to remove it. He relied on his title deed of 5 July 2001, a Green Card, and a prior judgment of the same court finding the Plaintiffs/Respondents lacked locus to bring the underlying matter. The Respondents, Lydia Wanjiku and Solomon Njau Kamunge, were served but neither filed a response nor appeared, leaving the application unopposed. Mogeni J framed two issues: whether the Applicant was entitled to the orders sought and whether the Court was enjoined to grant them. The court examined Sections 76 and 78 of the Land Registration Act, 2012, noting that Section 78(2) confers on the Court power to order removal of a restriction, and applied Republic v Land Registrar, Nyeri County Registry (Markerryl Company Limited) and John Kamau Kinyanjui v Thika District Land Registrar on the judicial exercise of that discretion. Finding the Applicant the absolute and indefeasible proprietor, with no overriding interests or Section 26 exceptions shown, the court held the 2002 restriction unsustainable, allowed the application as prayed, lifted the restriction and issued raising orders to the Kiambu Land Registrar.

Key legal issues

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01

Whether the court has power to order removal of a restriction on a title

Holding

Section 78(2) of the Land Registration Act grants the Court power to order removal of a restriction, and the discretion must be exercised judicially.

Reasoning

The court noted that Section 76 of the Land Registration Act provides that a restriction endures for a particular period, until a particular event, or until a further order is made. Section 78 empowers the Land Registrar, and Section 78(2) empowers the Court, to order removal or variation of a restriction on application by an affected party. Relying on John Kamau Kinyanjui v Thika District Land Registrar, the court held the discretion exists but must be exercised judicially, which it did on the uncontroverted material.

p. 2
02

Whether the Applicant, as registered proprietor, was entitled to have the restriction lifted

Holding

Yes. The Applicant demonstrated indefeasible title and no overriding interests or Section 26 exceptions were shown to justify the restriction.

Reasoning

The Applicant produced a title deed and Green Card showing registration as proprietor. His averments were uncontroverted as the Respondents neither appeared nor filed a response despite service. No material was placed before the Court showing overriding interests or exceptions under Section 26 of the Land Registration Act. Rights of a proprietor under Sections 24 and 25 of the Act, and the constitutional right to property under Article 40(1), favoured lifting the 2002 restriction.

p. 3

Legal principles established

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  • A registered proprietor's rights are protected and a restriction unsupported by material placed before the Court is unsustainable and may be lifted by the Court under Section 78(2) of the Land Registration Act.

Court orders

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  1. 1.That the restriction registered against Kabete/Nyathuna/1522 placed on 13th day of September 2002 be and is hereby lifted
  2. 2.That raising orders are hereby issued for removal of a restriction against Kabete/Nyathuna/1522 by the Kiambu Land Registrar
Jurisdiction invoked
Sections 78(2) and 76 of the Land Registration Act, 2012; Order 51 Rule 1 of the Civil Procedure Rules 2010; Sections 1, 1A, 3 and 3A of the Civil Procedure Act (Cap 21)

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, "Wanjiku & 2 others v Mwaniki (Environment and Land Case 289 of 2018) [2025] KEELC 7178 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7178/eng@2025-10-09

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