[2025] KEELC 5324 (KLR)

[2025] KEELC 5324 (KLR)

The court found that the appellant's preliminary objection regarding jurisdiction and procedure was without merit. The appellant failed to provide evidence, such as a valuation report, to substantiate the claim that the value of the suit properties exceeded the magistrate's pecuniary jurisdiction. The trial magistrate was correct in holding that jurisdiction could not be determined on mere submissions without evidence. On the procedural issue, the court held that Section 78(2) of the Land Registration Act allows for removal of a restriction by application, and a notice of motion is a competent mode of bringing such an application. The respondent was not seeking a determination of...

Citation
[2025] KEELC 5324 (KLR)
Parties
Appellant: Anthony Masibo Diffu; Respondent: Mildred Awino Were
Court
Environment and Land Court
Court Station
Environment and Land Court at Busia
Jurisdiction
Kenya
Judgment Date
15 July 2025
Case Number
Environment and Land Appeal 6 of 2020
Procedural Posture
Environment and Land Appeal / First Appeal From Ruling on Removal of Restriction
Outcome
appeal dismissed
Judges
BN Olao
Legal Topics
Removal of Restriction, Land Registration, Jurisdiction of Magistrates Court, Procedural Technicalities, Burden of Proof
Source Language
English
Land and Property Civil Procedure Removal of Restriction Land Registration Jurisdiction of Magistrates Court Procedural Technicalities Burden of Proof

Case Brief

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Parties

Anthony Masibo Diffu

Appellant

Mildred Awino Were

Respondent

Procedural Posture

Environment and Land Appeal / First Appeal From Ruling on Removal of Restriction

Legal Issues

  1. 1 Whether the trial magistrate had jurisdiction to hear and determine the application for removal of restriction given the alleged value of the suit properties.
  2. 2 Whether the application for removal of restriction was properly commenced by way of notice of motion rather than plaint, petition, or originating summons.
  3. 3 Whether the restriction placed by the appellant on the suit properties was justified and supported by evidence.

Ratio Decidendi

The court found that the appellant's preliminary objection regarding jurisdiction and procedure was without merit. The appellant failed to provide evidence, such as a valuation report, to substantiate the claim that the value of the suit properties exceeded the magistrate's pecuniary jurisdiction. The trial magistrate was correct in holding that jurisdiction could not be determined on mere submissions without evidence. On the procedural issue, the court held that Section 78(2) of the Land Registration Act allows for removal of a restriction by application, and a notice of motion is a competent mode of bringing such an application. The respondent was not seeking a determination of...

Court Disposition

appeal dismissed

Orders

  • The appeal is dismissed.
  • The appellant shall pay the costs of the respondent both in this court and the court below.