keelc-2023-16000

5. It is the Applicant’s submission that the suit is properly led as provided for under the law to wit section 78(2) of the Land Registration Act, Section 3 of the Environment and Land Court Act and order 50 rule 1 of the Civil Procedure Rules. That she notied the Respondent as required by Section 78(2) of the Land Registration Act. The Applicant submits that there is currently no pending suit over the suit property and added that information over High Court Civil Suit No 205 of 1993, cannot be ascertained since the information on the same is unavailable and she is not aware of the parties to the suit. In submitting that time has since lapsed and it is in the interest of justice that the same be removed, the Applicant relied on the case of Joyce Waithira Mwangi vs Thika Land Registrar [2018] eKLR, where the Court opined that restrictions ought not to be indenite. 6. Further, the Applicant submit that the Respondent ought to provide details of the High Court Civil Suit No 205 of 1993. Alternatively, that the registrar should attempt to resolve the issue as allowed under section 14 and 78(1) of the Land Registration Act. In the end, she submits that the restriction is detrimental to the interest of the Applicant freely dealing with the land. 7. he Respondent led its submissions late in time with no reason for delay. It was its submissions that the restriction was lawfully placed by an order of Court and as such the order should be obeyed. That any variation ought to be obtained from the said Court. 8. As per the attached copy of the Certicate of Ocial Search, the suit land is registered in the name of Naftali Njagi Nyaga, being LOC 8/Matharite/32, measuring 1.53 Ha, who was issued with title on the November 29, 1974. As per the search in entry 6 a restriction was registered against the property on September 3, 1993, by dint of an Order of Court issued in High Court Civil Suit No 205 of 1993. The particulars of High Court Civil Suit No 205 of 1993, are not known to this Court and none of the parties has availed any record of the same. It is evident from the Certicate of Conrmation of Grant dated January 16, 2017, that the suit property was issued to James Nyaga Njagi. The said James Nyaga Njagi and the Applicant are co-administrators of the estate of Naftali Njagi Nyaga. It is not clear why James Nyaga Njagi is not part of the proceedings herein. 9. The Court directed that the Preliminary Objection and the Notice of Motion Application be determined concurrently. With the withdrawal of the Plaint, ground one and two of the Notice of Preliminary Objection are spent. 10. It is important to rst determine the Preliminary Objection before determining the merits of the application. 11. The Court has considered the pleadings in general, the written submissions and the relevant provisions of law and nds that the main issue for determination is whether the Preliminary Objection and the Application dated December 13, 2022 are merited. 12. A Preliminary Objection was described in the Mukisa Biscuits Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, to mean: So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16000/eng@2023-03-09 2

page 2 of 7

13. Further Sir Charles Nebbold, JA stated that: A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of Preliminary Objection does not nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”. 14 15. The Supreme Court in the case of Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 others [2015] eKLR, expanded the above principle and further gave the rationale for raising a preliminary objection. It delivered itself thus: 1. Preliminary objection consisted of a point of law which had been pleaded or which arose by clear implication out of pleadings and which if argued as a preliminary point could dispose o the suit. A preliminary objection was in the nature of what used to be a demurrer. It raised a pure point of law, which was argued on the assumption that all the facts pleaded by the other side were correct. It could not be raised if any fact had to be ascertained or if what was sought was the exercise of judicial discretion. The Court had to be satised that there was no proper contest as to the facts. The facts were deemed agreed, as they were prima facie presented in the pleadings on record. 2. Preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts were incompatible with that point of law. … 3. …………….. The Supreme Court in the aforementioned case went on to state that; The true preliminary objection served two purposes of merit: 1. it served as a shield for the originator of the objection against proigate deployment of time and other resources. and 2. it served the public cause, of sparing scarce judicial time, so it could be committed only to deserving cases of dispute settlement. It was distinctly improper for a party to resort to the preliminary objection as a sword, for winning a case otherwise destined to be resolved judicially, and on the merits.” 16. The above being the description of Preliminary Objection, it is evident that a Preliminary Objection, raises a pure point of law, which is premised on the assumption that all facts pleaded by the other side are correct. However, it cannot be raised if any facts have to be ascertained from elsewhere or where the court is called upon to exercise judicial discretion. 17. In determining a Preliminary Objection, the Court will take into account that a Preliminary Objection must stem from the pleadings and that it raises pure point of law. See the case of Avtar Singh Bhamra & another v Oriental Commercial Bank, Kisumu HCCC No 53 of 2004, where the court held that:A Preliminary Objection must stem or germinate from the pleadings led by the parties and must be based on pure points of law with no facts to be ascertained.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16000/eng@2023-03-09 3

page 3 of 7

18. In the instant case, the Preliminary Objection is premised on the grounds that the application ought to be sought in High Court No 205 of 1993, and that the restriction was legally registered. In determining whether the instant application ought to have been led in High Court No 205 of 1993 this Court will have to peruse the facts giving rise to the ling of the restriction. Even though it stems from the pleadings that there was a restriction registered as an Order of the Court, to adequately determine the authenticity of this, the Court will have to investigate facts founding the suit. 19. It is not clear from the pleadings why the restriction was placed. A cursory look at the Certicate of Ocial Search does not inform this Court the reason for the restriction or in whose favor the restriction was drawn. This will require the Court to investigate the facts and draw a conclusion. Taking into account that the Preliminary Objection must stem from the pleadings and raises pure point of law, and should neither deal with disputed facts nor should it derive its foundation from factual information, this Court nds and holds that the Preliminary Objection herein raises facts that must be ascertained. In the case of Oraro v Mbaja [2005] 1 KLR 141, the Court held that:Anything that purports to be a Preliminary Objection must not deal with disputed facts and it must not derive its foundation from factual information which stands to be tested by rules of evidence”. 20. To this end, this Court nds and holds that the Preliminary Objection does not meet the threshold established in the Mukisa Kituyi case (supra) and proceeds to dismiss it. 21. The Court will then move to determine whether the application dated December 13, 2022, is merited. Restriction is an interest registered on land. Within the provisions of Section 76 of the Land Registration Act, the Land Registrar has the jurisdiction to register restriction. The Section provides: 76. (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, and after directing such inquiries to be made and notices to be served and hearing such persons as the Registrar considers 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— (3) (a) for a particular period; (b) until the occurrence of a particular event; or (c) until the making a further order is made, and may prohibit or restrict all dealings or only or the dealings that do not comply with specied conditions, and the restriction shall be registered in the appropriate register. The Registrar shall make a restriction in any case where it appears that the power of the proprietor to deal with the land, lease or charge is restricted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16000/eng@2023-03-09 4

page 4 of 7

22. The above provision is a replica of section 136 (1) of the Registered Land Act cap 300 Laws of Kenya, now repealed which provides: 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.” 23. The above provision does not recognize that the Court is tasked with registration of restriction. What the Act contemplates is that the Court will register an inhibition within the provisions of Section 68 which provides: 68. 69. (1) The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge. (2) A copy of the inhibition under the seal of the court, with particulars of the land, lease or charge aected, shall be sent to the Registrar, who shall register it in the appropriate register. (3) An inhibition shall not bind or aect the land, lease or charge until it has been registered. Eect of inhibition. So long as an inhibition remains registered, any instrument that is inconsistent with the inhibition shall not be registered. Cancellation of inhibition. 70. 24. The registration of an inhibition shall not be cancelled except in the following cases— (a) on the expiration of the time stated in the inhibition; (b) on proof to the satisfaction of the Registrar of the occurrence of an event stated in the inhibition; (c) on the land, lease or charge being sold by a charge, unless such sale is itself inhibited; or (d) by a consequent order of the court Restriction and inhibition cannot be used interchangeably since the bodies tasked with issuing these interest dier. Presently what was registered is a restriction and the Land Registration Act under section 78(1) lays down the procedure for removal of restriction that: 78 (1) The Registrar may, at any time and on application by any person interested or at the Registrar’s own motion, and after giving the parties aected by the restriction an opportunity of being heard, order that the removal or variation of a restriction. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16000/eng@2023-03-09 5

page 5 of 7

(2) Upon the application of a proprietor aected by a restriction, and upon notice to the Registrar, the court may order a restriction to be removed, varied, or other order as it deems t, and may make an order as to costs.” 25. Essentially, the rst point of action is the registrar who may do so on suo moto or in response to an application by a party. There is no provision on how to approach the registrar for the removal of the restriction, but such application must expressly state the intention to remove the restriction. Should the registrar refuse, fail and/ or neglect to remove the restriction, the aected person may then move Court. Section 78(2) contemplates that the registrar must be notied of the application which has been adequately done in this case. 26. The procedure contemplated above makes the Court a means of last resort. The Applicant attached a letter dated June 8, 2022, the contents of which was not seeking removal of the restriction but sought details of High Court Civil Suit No 205 of 1993. As it is therefore, there is no demonstration that the Applicant moved the registrar rst for removal of restriction. 27. The restriction noted as entry 6 reads “Restriction except under an order of High Court Civil Suit No 205 of 1993. No dealings with the land by the proprietor shall be registered until the same has been discharged” Contrary to the Applicant’s contestation that the restriction was registered due to a Court order, the wordings in the entry give a dierent nding. It is clear that the restriction was registered on the land and only an order of Court in High Court No 205 of 1993, could do away with the registration failure to which the same would remain in force until it is discharged. 28. This Court has not had a chance to go through any proceedings in respect of High Court No 205 of 1993, but it maintains the restriction was not Court originated. This being the case, the Applicant is bound by rules of procedure to rst move the registrar for the removal of the restriction. Before that can be done, this Court has no jurisdiction. 29. The Court of Appeal in Geoffrey Muthinja & another v Samuel Muguna Henry & 1756 others [2015] eKLR, rightly held: It is imperative that where a dispute resolution mechanism exists outside courts, the same be exhausted before the jurisdiction of the courts is invoked. Courts ought to be the fora of last resort and not the rst port of call the moment a storm brews within churches, as is bound to happen. The exhaustion doctrine is a sound one and serves the purpose of ensuring that there is a postponement of judicial consideration of matters to ensure that a party is rst of all diligent in the protection of his own interest within the mechanisms in place for resolution outside of courts. This accords with Article 159 of the Constitution which commands Courts to encourage alternative means of dispute resolution.” 30. There is a well laid down procedure that the Applicant must rst follow before she can come to this Court. There is no diculty that has been demonstrated as to why the Applicant cannot follow the procedure. Interestingly, the Applicant is not a registered proprietor of the land and as per the certicate of conrmation of grant, she is not an heir of the suit property. It is therefore not clear why she would pursue this on behalf of James Nyaga Njagi, the intended beneciary. 31. The upshot of the foregoing is that the Notice of motion application dated December 13, 2022, is premature and is found not merited. The said application is hereby dismissed entirely with no orders as to costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16000/eng@2023-03-09 6

page 6 of 7

It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 9TH DAY OF MARCH, 2023. L. GACHERU JUDGE Delivered virtually in the presence of; M/s Muthanje for the Plainti/Applicant Defendant/Respondent - Absent Joel Njonjo - Court Assistants https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16000/eng@2023-03-09 7

page 7 of 7