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MagistrateDismissedNot stated in the judgment (Notice of Motion dated 17th March 2025)· [2026] KEMC 50 (KLR)

Kungu & another v Nyambura & another (Environment and Land Miscellaneous Application E091 of 2025) [2026] KEMC 50 (KLR)

Magistrates' Court (Environment and Land jurisdiction)
12 February 2026
ANALOYCE – PETER- NDEGE
644 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court refused to remove land restrictions because the applicants failed to join the Land Registrars as respondents, even though nobody opposed the application.

What this practically means

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Executive summary

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The applicants, joint administrators of the estate of the late Julius Kungu Maingi, moved the court by Notice of Motion dated 17th March 2025 seeking removal of restrictions registered against four parcels of land: Bahati/Kabatini Block 1/13484 (NDEFFO) and Ruiru/East Block 2/31026, 31027 and 31028. Josiah Kariuki Kungu deponed that the parcels had been restricted/cautioned by people known to the estate without notification to him, frustrating transmission of the properties into the administrators' joint names. The application was unopposed, the respondents having been served but not having filed a response. The court, applying the Supreme Court's decision in Gideon S. Konchellah v Julius L. Sunkuli, held that an unopposed application is not automatically granted and that the court must examine jurisdictional impediments and the sufficiency of material. Framing the sole issue as whether the restrictions should be removed, the court considered section 78 of the Land Registration Act, under which an affected proprietor may apply to court for removal of a restriction upon notice to the Registrar. Finding no proof that the Registrars had been notified, and noting that the Registrars had not been joined as respondents as they ought to have been, the court dismissed the application as improperly before it on that single reason. No costs order was made.

Key legal issues

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01

Whether the court should order removal of the restrictions on the suit parcels in an unopposed application

Holding

The application was dismissed as improperly before the court because the Land Registrars were neither joined as respondents nor proved to have been notified as required by section 78(2) of the Land Registration Act.

Reasoning

Section 78(2) of the Land Registration Act permits an affected proprietor to apply to court for removal of a restriction. The court read the proviso-type requirement that the application be made upon notice to the Registrar. Although the applicants, as estate administrators, were proprietors affected by the restrictions, they did not join the Registrars for Ruiru and Nakuru nor demonstrate that notice was given to them. That procedural defect alone was fatal, and the court declined to exercise its discretion in their favour despite the application being unopposed.

p. 2

Legal principles established

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  • An unopposed application is not automatically granted; the court must satisfy itself that the application is meritorious and free of jurisdictional impediments.
  • Under section 78(2) of the Land Registration Act, an application by a proprietor affected by a restriction requires notice to the Registrar, and the Registrar must be joined for the application to be properly before the court.

Court orders

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  1. 1.The Notice of Motion dated 17th March 2025 seeking removal of the restrictions on Bahati/Kabatini Block 1/13484 (NDEFFO), Ruiru/East Block 2/31026, Ruiru/East Block 2/31027 & Ruiru/East Block 2/31028 is dismissed

Authorities

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Legislation

  • Land Registration ActSection 78(1) and (2)

Cases cited (1)

  • Gideon S. Konchellah Vrs Julius L. Sunkuli & 2 others
    [2018] e KLR
Jurisdiction invoked
Section 78(2) of the Land Registration Act (court's power to order removal of a restriction on application of an affected proprietor)

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, "Kungu & another v Nyambura & another (Environment and Land Miscellaneous Application E091 of 2025) [2026] KEMC 50 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 17th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/50/eng@2026-02-12

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