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ELCPartially AllowedEnvironmental and Land Originating Summons E037 of 2025

Jane Elizabeth Rose v Land Registrar Eldoret Land Registry & another

Environment and Land Court
25 September 2026
15,473 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~62 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court has ruled that land restrictions registered without notice or hearing of the owner are void and must be removed.

What this practically means

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Executive summary

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The Applicant, registered proprietor of Eldoret Municipality/Block 8/38, challenged a restriction registered against the property on 27th June 2024 at the instance of the Ethics and Anti-Corruption Commission pending investigations into whether the land was public property. She complained that the Land Registrar made no pre-registration inquiries, gave no notice, afforded no hearing, issued no post-registration notice, and thereafter declined to determine her application for removal of the restriction, instead referring it to the EACC. The Respondents maintained that the Registrar's powers under sections 76, 77 and 78 of the Land Registration Act were discretionary, that the restriction preserved the subject of investigations, and that public interest favoured its retention. The court held that although the decision whether to register a restriction is discretionary, pre-registration inquiries, notice and hearing of the proprietor are mandatory conditions precedent, as is post-registration notice under section 77(1), reinforced by Regulation 81 of the Land Registration (General) Regulations and Articles 40(2)(b), 47 and 48 of the Constitution. Non-compliance rendered the restriction void and a nullity per the Mcfoy rule. The Registrar was duty-bound to determine the removal application, and its delegation to the EACC was ultra vires and constituted the Commission a judge in its own cause. Applying proportionality, the court held the law does not envisage a restriction ad infinitum, and two years of inconclusive investigations was unreasonable. Public interest, anchored in the rule of law, could not sustain an unlawful restriction. The court declared the registration and its sustenance unlawful nullities, ordered removal of the restriction within thirty days failing automatic removal, and awarded the Applicant costs against the 1st Respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether making inquiries from the proprietor by the Registrar under section 76(1) of the LRA is mandatory and the consequence of failure to do so
  2. 2.Whether issuing a notice to the proprietor by the Registrar under section 76(1) of the LRA is mandatory and the consequence of failure to do so
  3. 3.Whether hearing the proprietor before registration of a restriction under section 76(1) of the LRA is mandatory and the consequence of failure to do so
  4. 4.Whether issuing a notice to the proprietor after registration of a restriction under section 77(1) of the LRA is mandatory and the consequence of failure to do so
  5. 5.Whether the 1st Respondent complied with the law in relation to removal of the restriction and whether the delegation of the Applicant's Application to the 2nd Respondent was ultra vires
  6. 6.Whether there is a definite period fixed for the life of a restriction
  7. 7.Whether the Applicant has made out a case for removal of the impugned restriction or be sustained in public interest as urged by the 2nd Respondent
  8. 8.Which party should bear the costs of this suit?

Key legal issues

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01

Mandatory nature of pre-registration inquiries, notice and hearing under section 76(1) LRA

Holding

The discretion in section 76(1) relates only to the decision whether to register a restriction; the inquiries, notice and hearing are conditions precedent and mandatory, reinforced by Regulation 81(2) and Form LRA 76

Reasoning

The court construed the parenthesis in section 76(1) as deliberately positioning inquiries, notice and hearing as conditions precedent to a judicious exercise of the discretion. Regulation 81(2) uses the mandatory 'shall' for pre-registration notice, and Form LRA 76 amalgamates notice, inquiries and hearing addressed to the proprietor. Only this construction is compatible with Article 47(1)&(2) of the Constitution.

p. 14
02

Consequence of non-compliance with sections 76(1), 77(1) and 78(1) LRA

Holding

Failure to comply rendered the registration and sustenance of the restriction unlawful, void and a nullity per the Mcfoy rule

Reasoning

On a preponderance of probabilities the 1st Respondent failed to make inquiries, serve notice, hear the Applicant before registration, or give post-registration notice, contrary to statute, Regulation 81, section 4 FAAA and Articles 40(2)(b), 47 and 48. Applying Mcfoy v United Africa Company, an act that is void is a nullity and proceedings founded on it collapse.

p. 15
03

Delegation of the removal application to the EACC

Holding

The referral could be construed as a notice under section 78(1), but the failure to set down the application for hearing and determination was an abdication and ultra vires, constituting the EACC a judge in its own cause

Reasoning

The Registrar is duty-bound under section 78(1) and Regulation 81(5)-(6) to hear and determine a removal application. Referring it to the 2nd Respondent and doing nothing thereafter left the Applicant with a Hobson's choice and amounted to unlawful delegation and bias contrary to Article 50(1).

p. 17
04

Duration of a restriction and proportionality

Holding

No definite period is fixed for restrictions under section 76(2)(b) & (c), but the law does not envisage a restriction ad infinitum; approximately two years and one month of inconclusive investigations was unreasonable

Reasoning

Section 58 of the Interpretation and General Provisions Act requires things to be done without unreasonable delay where no time is prescribed. Applying the proportionality test in the CCK case, sufficient cause existed for temporary preservation, but the period spent was adequate to complete document-based investigations and indefinite prolongation without progress was unjustified.

p. 18
05

Public interest in sustaining the restriction

Holding

Public interest is anchored in the rule of law; since the restriction was registered in flagrant disregard of the law, sustaining it would defeat public interest

Reasoning

Drawing on Murungaru, Fazal, Kinyanjui, BAT Kenya and the Goldenberg Commission cases, the court held that the Constitution reflects the supreme public interest and that a public body acting in disregard of law defeats the very public interest for which it was constituted. The 2nd Respondent's thesis that the restriction should be sustained was therefore rejected.

p. 21

Legal principles established

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  • Whereas the Registrar's decision whether to register a restriction under section 76(1) LRA is discretionary, pre-registration inquiries, notice and hearing of the affected proprietor are mandatory conditions precedent
  • Post-registration notice to the proprietor under section 77(1) LRA is mandatory and admits no discretion
  • The Registrar is duty-bound to hear and determine an application for removal of a restriction under section 78(1) LRA and cannot delegate that determination to another public body
  • The law does not envisage a restriction ad infinitum; where no time-frame is prescribed, the cause for the restriction must be pursued without unreasonable delay
  • Public interest cannot be sustained where the public body acted in total disregard of the law; rule of law is the most significant component of public interest

Court orders

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  1. 1.Declaration that the 1st Respondent's wilful failure to comply with sections 76(1), 77(1) and 78(1) of the LRA, Regulation 81 of the Land Registration (General) Regulations, section 4 of the FAAA and Articles 47(1)&(2), 40(2)(b) and 48 of the Constitution in registering and sustaining the restriction is unlawful, void and a nullity
  2. 2.Declaration that the continued sustenance of the restriction for an indeterminate period without conclusion of investigations or institution of recovery proceedings is unreasonable, disproportionate and unlawful, void and a nullity
  3. 3.Order that the 1st Respondent shall within thirty (30) days remove the restriction from the register, failing which the restriction shall stand automatically removed upon expiry of the thirty (30) days
  4. 4.The Applicant shall have costs of the OS, to be shouldered by the 1st Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 13 and 19 of the Environment and Land Court Act; sections 76, 77 and 78 of the Land Registration Act; Order 37 Rule 8 of the Civil Procedure Rules

Relief refused

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Costs against the 2nd Respondent

Costs were awarded only against the 1st Respondent, whose conduct occasioned the suit; no costs order was made against the 2nd Respondent

p. 24

Costs

The Applicant shall have costs of the OS, to be shouldered by the 1st Respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

whereas a decision by the Registrar to register a restriction under section 76(1) LRA is discretionary, the action of making inquiries from the aected party, issuance of a notice of the intention to register a restriction to the aected party, and hearing the aected party under section 76(1) of the LRA is mandatory.
p. 14Discretion vs mandatory pre-registration steps under section 76(1) LRA
the Registrar has absolutely no discretionary power in relation to issuance of a post-registration notice, in writing, to notify the proprietor aected by the restriction.
p. 15Mandatory post-registration notice under section 77(1) LRA
the Registrar lacks discretionary power to elect whether to hear and determine or not. In other words, the Registrar is duty-bound to determine the Application.
p. 17Registrar's duty to determine removal applications under section 78(1)
in instances where no prescribed time-frame and especially where a public act curtails a right, the law does not at all envisage a restriction ad innitum.
p. 18No restriction ad infinitum; proportionality of indefinite restrictions
if a public body was constituted or an act progressed by the public body in public interest but in total disregard of the law, then it defeats the very public interest for which it was constituted or the act progressed.
p. 20Public interest and rule of law
this Court hereby issues an order that the 1st Respondent shall within a period of thirty (30) days from the date of this Judgment remove the restriction from the register, failing which the impugned restriction shall stand automatically removed upon expiry of the thirty (30) days.
p. 24Final orders - removal of restriction
The Applicant shall have costs of the OS, to be shouldered by the 1st Respondent.
p. 24Final orders - costs

Issues in the judgment

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minor

Conflicting dates for the EACC letter requesting restriction: 20th June 2024 in the OS versus 21st June 2024 in the affidavits and the court's findings

minor

Removal application dated 6th October 2025 in pleadings but referred to as 5th October 2025 in the questions and conclusion

material

Paragraph 70 states restrictions other than under section 76(2)(a) 'have definite period', contradicting the holding that no definite period is fixed

minor

Paragraphs 90 and 91 duplicate the same introductory sentence on exercise of discretion

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, "Jane Elizabeth Rose v Land Registrar Eldoret Land Registry & another", Case Analysis (2026). Environmental and Land Originating Summons E037 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25

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