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ELCStruck OutNot stated in judgment· [2025] KEELC 8637 (KLR)

Wekasa v Land Registrar Kakamega (Miscellaneous Application E019 of 2024) [2025] KEELC 8637 (KLR)

Environment and Land Court
4 December 2025
ECE.C. Cherono
561 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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If a restriction is on your land in Kenya, you must first ask the Land Registrar to remove it before going to court, or your case will be struck out.

What this practically means

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Executive summary

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The Applicant moved the court by Originating Summons dated 26th March 2024 under Order 51 Rule 1 of the Civil Procedure Rules and section 73(1) of the Land Registration Act 2012, seeking an order directing the Land Registrar Kakamega to withdraw a restriction placed on land parcel North Kabras/Iluandeti/1704 on 4th October 2000, together with costs in the cause. Upon service, the Respondent filed a notice of preliminary objection on three grounds: failure to exhaust the mechanism under section 78(1) of the Land Registration Act; want of jurisdiction as the suit was premature, a waste of judicial time and an abuse of process; and that substantive orders were being sought in a miscellaneous application not founded on a substantive pleading. The court noted that the matter had earlier been before ELC Kakamega (Justice D. Ohungo), where the Applicant was directed to first move the Land Registrar and report on progress, but the file was transferred to Bungoma for want of jurisdiction and the Applicant instead fixed the application for hearing. Holding that section 78(1) requires an application for removal of a restriction to be made to the Land Registrar in the first instance, and that the Applicant had not invoked that provision, the court found the application premature, declined jurisdiction, struck out the application dated 26th March 2024 for want of jurisdiction, and awarded costs to the Respondent.

Key legal issues

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01

Exhaustion of the statutory mechanism under section 78(1) of the Land Registration Act

Holding

The application was premature because the Applicant never applied to the Land Registrar for removal of the restriction in the first instance; the court therefore declined jurisdiction and struck out the application

Reasoning

Section 78(1) requires that an application for removal or variation of a restriction be made to the Land Registrar, who must give affected parties an opportunity of being heard. Section 78(2) permits court intervention upon application of an affected proprietor. On the record, the Applicant had not invoked section 78(1), and had earlier been guided by the trial judge in ELC Kakamega to pursue that avenue but failed to do so before fixing the matter for hearing.

p. 2

Legal principles established

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  • An application for removal of a restriction must first be made to the Land Registrar under section 78(1) of the Land Registration Act before resort to the court, failing which the suit is premature

Court orders

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  1. 1.Application dated 26th March 2024 struck out for want of jurisdiction
  2. 2.Costs awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Land Registration Act 2012Section 73(1)
  • Land Registration Act, 2012Section 78(1)
  • Land Registration Act, 2012Section 78(2)
Jurisdiction invoked
Section 73(1) of the Land Registration Act 2012 and Order 51 Rule 1 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, "Wekasa v Land Registrar Kakamega (Miscellaneous Application E019 of 2024) [2025] KEELC 8637 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8637/eng@2025-12-04

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