Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case (Nakuru) – Notice of Motion dated 16th January 2026· [2026] KEELC 2876 (KLR)

Kigo v Kigo & another (Environment and Land Miscellaneous Case E002 of 2026) [2026] KEELC 2876 (KLR)

Environment and Land Court
13 May 2026
LKL Komingoi
1,389 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court ordered the removal of a title restriction because the person who placed it ignored repeated chances to justify it.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Nakuru (L Komingoi, J) determined a Notice of Motion dated 16th January 2026 by Hiram Ngugi Kigo, the registered owner of title Kihingo/Likia Block 2/330 (Pwani Mutukanio), seeking the removal of a restriction registered on the title at the instance of the 1st Respondent. The application, brought under Section 78(1) and (2) of the Land Registration Act and the Civil Procedure Act, sought an order compelling the 2nd Respondent to lift the restriction. The 2nd Respondent opposed, arguing that the statutory threshold under Section 78 had not been met because the 1st Respondent had not been heard and that the Registrar could not be compelled without due process. The 1st Respondent filed no response despite personal service, confirmed by an affidavit of service, and further having been telephoned by the Court Assistant using a number obtained from the Land Registrar. The court framed one issue: whether an order for removal of the restriction should issue. Applying Section 78(1) and (2), and Section 76(2), and following Joyce Waithira Mwangi v Thika Land Registrar, the court held that the 1st Respondent had been given ample opportunity to be heard and had neglected to seize it; her unstated interest could not justify the restriction subsisting in perpetuity. The application was allowed: the 2nd Respondent was ordered to remove, vacate or lift the restriction within 21 days, with costs of the application borne by the Applicant.

Key legal issues

#
01

Removal of a restriction on a registered title under Section 78 of the Land Registration Act

Holding

The court has power to order removal of a restriction where the affected proprietor applies and the party who placed the restriction, though afforded an opportunity to be heard, fails to appear or justify it

Reasoning

Section 78(1) permits the Registrar to remove a restriction after giving affected parties a hearing; Section 78(2) allows the court, on application by an affected proprietor, to order removal or variation. The 1st Respondent, who caused the restriction, was repeatedly summoned to the Land Registry and served with the application but refused to respond or attend. The court was satisfied the opportunity to be heard was accorded, and relying on Section 76(2) and the Joyce Waithira Mwangi authority, found the restriction could not subsist indefinitely.

p. 4

Legal principles established

#
  • Under Section 78(2) of the Land Registration Act, a proprietor affected by a restriction may apply to court for its removal, and the court may order removal, variation or other orders including costs
  • A restriction on a registered title cannot be allowed to subsist in perpetuity, particularly where the person who placed it fails to justify it when accorded an opportunity to be heard

Court orders

#
  1. 1.The 2nd Respondent is ordered to remove, vacate and/or lift the restriction registered against title Number Kihingo/Likia Block 2/330 (Pwani Mutukanio) within twenty-one (21) days from the date of the ruling
  2. 2.Costs of the application to be borne by the Applicant

Authorities

#

Legislation

  • Civil Procedure Rules 2010Order 51 Rule 1
  • Civil Procedure Act Cap 21Sections 1A, 1B, 3A
  • Land Registration ActSection 76(2)
  • Land Registration Act 2012Section 78(1) and (2)
  • Environment and Land Court ActSection 3

Cases cited (4)

  • John Kamau Kinyanjui Vs Thika District Land Registrar
    (2017) KEELC 714 (KLR)
  • Joyce Waithira Mwangi Vs Thika Land Registrar
    (2018) eKLR
  • Mwangi Rukwaro and another Vs Land Registrar Nyeri
    (2019) eKLR
  • Republic Vs Land Registrar & Another; Wamae & Another
    ELC JR E001 of 2022
Jurisdiction invoked
Section 78(1) and (2) of the Land Registration Act, 2012; Section 76 of the Land Registration Act; Sections 1A, 1B and 3A of the Civil Procedure Act; Section 3 of the Environment and Land Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kigo v Kigo & another (Environment and Land Miscellaneous Case E002 of 2026) [2026] KEELC 2876 (KLR)", Case Analysis (2026). ELC Case (Nakuru) – Notice of Motion dated 16th January 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2876/eng@2026-05-13

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