Mwangi & 2 others v Attorney General

No. 153 of 2015 –In the matter of the Estate of Mary Waithira Mwangi when they were called upon to avail a certicate of ocial search for the suit property during conrmation proceedings. 5. It was the plaintis’ case that despite demand, the registrar had refused to remove the restriction without a court order to that eect even though Nyahururu SRMCC No. 57 of 1989 was concluded. The plaintis contended that they could not avail copies of the proceedings or judgment in the said case because the relevant court le was destroyed in a re incident at Nyahururu Law Courts. B. The Defendant’s Defence 6. The defendant led a defence dated 07.02.2022 making a general denial of the plaintis’ claim. The defendant denied all the allegations in the plaint and put the Plaintis to strict proof thereof. It was further pleaded that the Plaintis were ignorant of the land laws which provided for removal of such restrictions. The defendant, therefore, prayed for dismissal of the Plaintis’ suit with costs. C. The Plaintis’ Evidence 7. At the trial hereof the plaintis called one witness, the 1st plainti, who testied on their behalf. The 1st plainti adopted the contents of his witness statement dated 17.12.2021 as his evidence in-chief. He also produced the documents in the Plaintis’ list of documents dated 17.12.2021 as exhibits. It was his evidence that the deceased was not aware of the entry of the restriction and that the Plaintis only became aware of it during the succession proceedings for the estate of the deceased. It was the Plaintis’ case that if the deceased had been notied of the entry of the restriction she would have notied the registrar of the conclusion of the suit led by Monica Wambui Njuguna to facilitate removal thereof. D. The Defendant’s Evidence 8. The Defendant did not attend court on the hearing date to contest the Plaintis’ suit despite the date having been taken by consent of the parties. E. The Issue for Determination 9. The court has considered the pleadings, documents and evidence on record in this matter. The court is of the opinion that the main issue for determination is whether the Plaintis have made out a case for removal of the restriction entered against the suit property in 1989. F. Analysis and Determination 10. Section 136 of the Registered Land Act (cap.300) (repealed) provided as follows on the powers of the registrar to register restrictions: (1) For the prevention of any fraud or improper dealing or for any other sucient cause, the Registrar may, either with or without the application of any person interested in the land, lease or charge, after directing such inquiries to be made and notices to be served and hearing such persons as he thinks t, make an order (hereinafter referred to as a restriction) prohibiting or restricting dealings with any particular land, lease or charge. (2) A restriction may be expressed to endure:a) for a particular period; or b) until the occurrence of a particular event; or c) until the making of a further order, https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15835/eng@2023-03-02 2

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and may prohibit or restrict all dealings or only such dealings as do not comply with specied conditions, and the restriction shall be registered in the appropriate register. 11. (3) The Registrar shall make a restriction in any case where it appears to him that the power of the proprietor to deal with the land, lease or charge is restricted. (4) The Registrar shall make a restriction expressed to endure until the making of a further order when the Registrar is informed by the National Museums of Kenya that a declaration of heritage by the Minister under the National Museums and Heritage Act has been applied for, or is about to be gazetted or has been gazetted aecting the property in question and upon gazettement the restriction shall take eect as a charge over the land The obligation of the registrar upon making a restriction in the registrar was provided for under section 137(1) of the said Act as follows: “ The Registrar shall give notice in writing of a restriction to the proprietor aected thereby.” 12. It is evident from the above provisions of the law that a restriction is not meant to remain in place indenitely but only for a limited period of time to facilitate resolution of a particular issue or dispute. It is also evident that the registrar is legally obligated to give a notice in writing to the registered proprietor of the making of the restriction. There is no evidence on record to demonstrate that the registrar ever gave such written notication to the deceased or any of his family members at the material time. The restriction has now been in place for about 34 years. 13. The court has noted that the Plaintis’ evidence at the trial was not challenged by the Defendant and neither was it rebutted in any manner since the Defendant did not tender any evidence at the trial. The court accepts the Plaintis’ evidence on record on the issue for determination. The court is satised that the registrar did not notify the deceased of the entry of the restriction as required by law. The court is also satised that the Plaintis have given a reasonable explanation for their inability to avail a copy of the proceedings or judgment in Nyahururu SRMCC No. 57 of 1989. In the premises, the court is satised that the Plaintis have made out a case for removal of the restriction against the suit property. G. Conclusion and Disposal Order 14. The upshot of the foregoing is that the court is satised that the Plaintis have proved their case against the Defendant to the required standard as required by law. Accordingly, judgment is hereby entered for the Plaintis against the Defendant in the following terms: a. The Land Registrar – Nyandarua County shall forthwith remove the restriction entered against Title No. Nyandarua/Malewa/557 on 24.07.1989. b. There shall be no order as to costs of the suit. It is so decided. JUDGMENT DATED AND SIGNED AT NYAHURURU THIS 2ND OF MARCH, 2023 AND DELIVERED VIA MICROSOFT TEAMS PLATFORM. In the presence of: N/A or the Plaintis N/A for the Defendant C/A - Carol https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15835/eng@2023-03-02 3

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Y. M. ANGIMA JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15835/eng@2023-03-02 4

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