Shah v Ethics and Anti-Corruption Authority & another (Enviromental and Land Originating Summons E008 of 2025) [2026] KEELC 521 (KLR)
The bottom line
#The Eldoret Environment and Land Court ordered removal of an EACC land restriction registered without notice, ruling indefinite restrictions without due process are unlawful.
What this practically means
#Executive summary
#Key legal issues
#Lawfulness of the restriction registered on 13th June 2023
The restriction was unlawful because the Registrar neither conducted inquiries nor issued written notice to the Plaintiff as required by Sections 76 and 77 of the LRA
Section 76(1) requires the Registrar, before making a restriction order, to direct inquiries and serve notices, and Section 77(1) obliges the Registrar to give written notice of a restriction to the affected proprietor. Neither Defendant led evidence that notice was issued or inquiries conducted. The command being mandatory, its breach renders the registration of the restriction on 13th June 2023 not in accordance with the law.
Violation of Articles 40 and 47 of the Constitution
The restriction did not violate the Plaintiff's ownership or possession, but breached his right to fair administrative action and his ability to enjoy privileges of ownership such as charging the land for a loan
The court accepted that the restriction did not strip the Plaintiff of title or occupation. However, incidental rights under Section 24 of the LRA, including using the land as security for a loan, were curtailed. Registering the restriction without notice and without a hearing breached the right to be heard before administrative action, so both the procedure and the resulting restriction were contrary to Articles 40 and 47.
Whether the Plaintiff made out a case for removal of the restriction
Yes; the restriction had endured over two and a half years with no concluded investigation or recovery proceedings filed, so it was neither justified nor fair and had to be removed
Section 78 empowers the court to remove a restriction on application by an affected proprietor. The restriction had been in place for over two and a half years, no investigation report showing conclusion was produced, and no recovery suit was filed against the Plaintiff. The bank was aware of the restriction status, so any further charge would be with knowledge of possible recovery proceedings. The Defendants remain free to lodge a fresh restriction in compliance with the law if investigations remain incomplete.
Legal principles established
#- Sections 76 and 77(1) of the Land Registration Act mandate the Land Registrar to conduct inquiries and issue written notice of a restriction to the affected proprietor; registration without notice is unlawful
- Restrictions are not meant to endure indefinitely on a title; they hold property in abeyance only while the underlying issue is resolved
- Failure to issue notice and conduct inquiries before registering a restriction breaches the proprietor's right to fair administrative action under Article 47 and property rights under Article 40
- Costs follow the event under Section 27 of the Civil Procedure Act absent exceptional circumstances
Court orders
#- 1.Declaration that the restriction lodged and registered by the Defendants on 13.6.2023 was not exercised within the law
- 2.Declaration that due process was not complied with after registration of the restriction
- 3.Declaration that notification of the registration of the restriction was not served upon the Plaintiff in keeping with the rules of natural justice and the provisions of the Act
- 4.Declaration that the registration of the restriction on 13.6.2023 is not tenable in view of the inordinate inaction by the Defendants
- 5.Declaration that the Land Registrar did not act within his/her mandate under the laws respecting disposal of the restriction
- 6.Declaration that due and fair administrative justice was not afforded to the Plaintiff
- 7.Declaration that the Plaintiff is prejudiced by the indefinite restriction
- 8.Declaration that the delay of almost 2 years is neither justified nor fair and is not in the interest of the Plaintiff
- 9.An order directing the Land Registrar to forthwith lift and remove the restriction registered against the title on 13th June, 2023
- 10.Costs of the summons awarded to the Plaintiff
- Jurisdiction invoked
- Sections 78(2) of the Land Registration Act - court's power on application of a proprietor affected by a restriction to order its removal, variation or other order
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shah v Ethics and Anti-Corruption Authority & another (Enviromental and Land Originating Summons E008 of 2025) [2026] KEELC 521 (KLR)", Case Analysis (2026). Originating Summons dated 17th March, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/521/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.