Wanjiku & 2 others v Mwaniki (Environment and Land Case 289 of 2018) [2025] KEELC 7178 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the court has power to order removal of a restriction on a title
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.
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.
Whether the Applicant, as registered proprietor, was entitled to have the restriction lifted
Yes. The Applicant demonstrated indefeasible title and no overriding interests or Section 26 exceptions were shown to justify the restriction.
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.
Legal principles established
#- 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
#- 1.That the restriction registered against Kabete/Nyathuna/1522 placed on 13th day of September 2002 be and is hereby lifted
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.