https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5014

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC MISC. APPLICATION No. E013 OF 2026** **JOSEPH NJUGUNA THEURI** ………………………………….. **APPLICANT** **VERSUS** **COUNTY LAND REGISTRAR, UASIN GISHU COUNTY….REPONDENT** **JUDGMENT:** 1. The Applicant commenced this suit by way of a Notice of Motion Application dated 8th April, 2025 seeking the following orders:- 2. Spent 3. The restriction lodged on land parcel ELDORET MUNICIPALITY 21 (KING’ONG’O)/1946 by the Respondent on 5th February, 2004 be lifted. 4. The orders issued herein be served upon the Land Registrar Uasin Gishu County for compliance. 5. THAT costs of this Application be provided for. 6. The Application is supported by the grounds stated on the Motion as well as the Applicant’s Supporting Affidavit of the same date. According to the Applicant, he is the registered proprietor of the parcel of land known as Eldoret Municipality 21(King’ong’o)/1946 measuring approx. 0.20Ha (the suit property), which he purchased in 1981. The Applicant avers that on 05.02.2004, the Respondent lodged a restriction without any legal basis and in violation of his constitutional right to property under Article 40 of the Constitution. The Applicant claims that he discovered the restriction in March, 2026 and when he visited the Respondent’s office, was informed that they would conduct the investigations within two weeks. 7. The Applicant claims that when he went back two weeks later, the Land Registrar informed him verbally that they conducted investigations but were unable to determine why the restriction was placed, and he was advised to obtain a court order to lift the same. The Applicant explained that he was in the process of developing the land, but was stopped by the Uasin Gishu County Physical Planner on account of the restriction. He asserts that the restriction violates his rights under Article 40 and 47 of the Constitution. He avers that he has suffered and continues to suffer substantial prejudice including loss of use of the land and economic loss, and he asked this court to lift the restriction. 8. The Hon. Attorney General entered appearance for the Respondent on 22.04.2025 and filed Grounds of opposition dated 28.04.2026 in response to the Motion, where it was averred that:- 9. THAT the Application is premature, misconceived and bad in law for failure to exhaust the statutory mechanism provided under Sections 72 and 73 of the Land Registration Act, 2012. 10. THAT the Applicants have not demonstrated that they made any formal application to the Land Registrar for removal of the caution as required under Section 73(1) of the Land Registration Act, 2012. 11. THAT no evidence has been tendered to show that the Land Registrar has refused, failed and/or neglected to exercise his statutory mandate in respect of the caution registered against Eldoret Municipality Block 6/76. 12. THAT the Honourable Court’s jurisdiction has been improperly invoked in contravention of the doctrine of exhaustion of administrative remedies, the Applicants having failed to first seek redress before the Land Registrar. 13. THAT under Section 73(1) and (2) of the Land Registration Act, 2012, the Land Registrar is vested with primary jurisdiction to issue notice to the cautioner and determine whether the caution should be removed, and the Court’s jurisdiction is only appellate or supervisory where the statutory process has been invoked. 14. THAT the Application offends the provisions of Section 9(2) of the Fair Administrative Action Act, 2015, which requires exhaustion of internal mechanisms before approaching this Honourable Court. 15. THAT the Applicants have not demonstrated any exceptional circumstances to warrant bypassing the statutory procedure laid down under the Land Registration Act, 2012. 16. THAT the orders sought, if granted, would unjustifiably usurp the statutory mandate of the Land Registrar and defeat the clear procedure established by parliament for removal of cautions. 17. THAT the Application is therefore incompetent, procedurally defective and an abuse of the process of this Honourable Court. **Submissions:** 1. This Court directed that the Application be canvassed by way of written submissions. The parties herein complied with that directive, with the Applicant filing his submissions dated 20.05.2026, and the Respondent filing undated submissions. ***The Applicant’s Submissions;*** 1. Counsel for the Applicant argued in favour of removal of the restriction. Counsel submitted that when the restriction was placed in 2004, the then applicable law was Section 138(1)(2) of the Registered Land Act, which is now replaced by Section 78(1)(2) of the Land Registration Act. Counsel urged the court to remove the restriction as it was placed without any reasonable cause. Counsel argued that there has been undue delay in investigating any malpractice or illegality by the Respondent since placing the restriction in 2004. Counsel pointed out that the Registrar had not filed any Affidavit denying the assertions in the Applicant’s Supporting Affidavit. 2. Counsel argued that the registrar did not give any notice as required under Section 77(1) of the Land Registration Act, but decided to refer the matter to this court. Counsel also submits that the Registrar was duly notified by the Applicant to remove the restriction, but instead referred the Applicant to court. Counsel relied on ***Cheplaiti vs Land Registrar & Anor (Environment and Land Miscellaneous E044 of 2025 (2026) KEELC 906 (KLR)*** and ***Nakuru Environment & Land Case No. 331 of 2016, David Macharia Kinyuru vs District Land Registrar, Naivasha & Bernard M. Kabiri***. Counsel prayed that the court allow the present application. ***The Respondent’s Submissions;*** 1. In the submissions by the Hon. Attorney General, it was submitted that the caution was lodged in good faith and in accordance with the law as provided for in the Land Registration Act, and in particular Section 71 thereof. Counsel submitted that the procedure for removal of a caution is Section 73 of the Land Registration Act. Counsel states that either the cautioner can of their own volition remove the caution, or a party can seek court’s intervention, or apply to the Registrar for the removal. Counsel maintains that the Applicant should first have applied to the Registrar, but no evidence has been produced showing that the Applicant did so. 2. Counsel argued that the Applicant could not thus approach court claiming refusal by the Registrar. Counsel cited Section 107 of the Evidence Act and ***Stanley Maira Kaguongo vs Isaac Kibiru Kahuthia (2022) eKLR***, and submitted that without evidence, the present application is unsubstantiated. Counsel further accused the Applicant of being the author of his own misfortune for failure to follow the laid down procedure, thus prayers seeking removal of the caution and costs are misguided. Counsel concluded that the Applicant is not entitled to the reliefs sought herein and asked that the application be dismissed with costs to the Respondent. **Analysis and Determination:** 1. This Court has carefully considered the instant application alongside the Affidavit filed in support thereto, the Grounds of Opposition filed against it and the rival submissions by Counsel for the parties herein. The issues that arise for determination are:- 2. *Whether the court ought to order the removal of the restriction; and* 3. *Who shall bear the costs of the suit?* 4. **Whether the court ought to order the removal of the restriction;** 5. What is before this court is an application by the Applicant seeking removal of a Restriction. Unlike cautions which are lodged pursuant to Section 71 of the Land Registration Act, Restrictions are provided for under Section 76 thereof, which provides that:- ***76. Restrictions*** ***(1) For the purposes of compulsory acquisition the prevention of any fraud or improper dealing or for any other sufficient 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 fit, 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;*** ***(b)until the occurrence of a particular event; or*** ***(c)until a further order is made,*** ***and may prohibit or restrict all dealings or only or the dealings that do not comply with specified conditions, and the restriction shall be registered in the appropriate register.*** ***(2A) A restriction shall be registered in the register and may prohibit or restrict either all dealings in the land or only those dealings which do not comply with specified conditions.*** ***(3) 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.*** 1. The Applicant brings this suit claiming to be the registered owner of the suit property. To prove ownership, the Applicant has annexed to his Supporting Affidavit to the Motion a copy of a Title Deed for Eldoret Municipality/Block 21 (King’ong’o)/1946 measuring 0.20 Ha, issued on 07.04.1997 in his name. The Applicant equally annexed an Agreement for Sale dated 03.03.1981 showing that the land was sold by one Augustino K. Arap Keter to the Applicant herein, alongside Annah Wairimu Kiboi and Peter Kiboi Theuri. 2. The Applicant has also annexed a certified copy of the green card for the suit property, which shows that he was registered as the proprietor of the land on 07.04.1997. Pursuant to Section 26(1) of the Land Registration Act, all these are prima facie proof that the Applicant herein, being the person named in the title and register, is the proprietor of the land. 3. It is not disputed that a restriction was lodged in the register to the suit property on 05.02.2004. Going by Section 76(2) above, a restriction is not meant to remain in force indefinitely, but must endure for a particular period; until the occurrence of a particular event; or until a further order is made. On this, Justice Munyao Sila explained in ***David Macharia Kinyuru vs District Land Registrar, Naivasha & another [2017] KEELC 2474 (KLR)***, that:- ***“4. It will be noted from the above, that the purpose of a restriction is aimed essentially at stemming fraud or improper dealings over land. The Land Registrar may also place a restriction where there is other sufficient cause. Restrictions are to endure for a particular time, or until the occurrence of an event, or the making of a further order. It is not the purpose of this section of the law to have restrictions remain indefinitely. The reasoning is that a restriction should only hold a property in abeyance, as the underlying issue leading to the restriction is being resolved, since a restriction by itself does not solve a dispute.”*** 1. However, per the green card produced herein the restriction placed on the register on 05.02.2004 only indicated that the restriction was registered on suspicion of fraud. There is no indication whether there were any ongoing investigations into the alleged fraud, or how long the restriction was to remain in place. 2. The effect of a restriction as explained at Section 77(2) of the Land Registration Act is that an instrument that is inconsistent with a restriction shall not be registered while the restriction is still registered except by order of the court or of the Registrar. For this reason, Sections 76 and 77(1) requires that the Registrar give notice in writing to the proprietor affected by the restriction. The requirement for notice before lodging a restriction was well explained in the decision of ***In re Registrar of Land Kiambu County [2015] KEHC 6207 (KLR)***, where the court had this to say:- ***“9. It is therefore clear that before the Registrar registers a restriction on any land he/she must direct such inquiries to be made and notices to be served and hear such persons as he/she considers fit. This position was confirmed in Matoya vs Standard Chartered Bank (K) Ltd & Others (2003) 1 EA 140 where it was held that:*** ***‘A restriction is ordered to prevent any fraud or improper dealing with a given parcel of land and the land registrar does this whether on its own motion or if so asked by way of an application by the person interested in that land but before ordering the restriction the registrar is bound by law to make inquiries, send out notices and hear all those other people he may think fit first and he is not to move by whim, caprice or whatever influence personal or otherwise just to impose a restriction since he has a duty to inquire and be satisfied that his duty to order restriction is not hurting a person who was not heard and that indeed the restriction is in general good that frauds and other improper dealings are prevented.’*** ***10. In my view, in exercising his/her discretion on whom to hear the Registrar must take into account the provisions of the relevant law and the Constitution and with respect to the Constitution, Article 47 thereof provides as follows:*** ***(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.*** ***(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.*** ***11. As discussed elsewhere in this judgement procedural fairness encompasses that an opportunity of a hearing be afforded to the persons who are likely to be affected by the administrative decision. In my view one of the persons who ought to be given an opportunity of being heard before a restriction is registered is the proprietor of the land in question.”*** 1. The requirement for notice was further stressed by the Court of Appeal in the case of ***Matoya vs Standard Chartered Bank (K) LTD & others (2003) I EA 140***, where it was held that:- ***“A restriction is ordered to prevent any fraud or improper dealing with a given parcel of land and the land registrar does this whether on its own motion or if so asked by way of an application by the person interested in that land but before ordering the restriction the registrar is bound by law to make inquiries, send out notices and hear all those other people he may think fit first and he is not to move by whim, caprice or whatever influence personal or otherwise just to impose a restriction since he has a duty to inquire and be satisfied that his duty to order restriction is not hurting a person who was not heard and that indeed the restriction is in general good that frauds and other improper dealings are prevented.”*** 1. The Applicant states that he only found out about the restriction in March, 2026. This points to a lack of notice as required under Section 77(1) of the Land Registration Act, yet as the registered owner, there is no doubt that he would be affected by the said restriction. Indeed, the Applicant has explained to this court that he was in the process of building on the land when he was stopped by the County Physical Planner due to the Restriction lodged against his title. 2. Only the Land Registrar can shed light on whether the provisions of section 76(1) of the Act was complied with. It is unfortunate, however, that the Land Registrar did not swear any replying affidavit explaining the circumstances under which the restriction was registered or how long it was intended to last. I am therefore convinced that the restriction, which was registered without notice or granting the Applicant the opportunity to be heard in compliance with the law and laid down procedure, breached the rules of fair administrative action of the Applicant. 3. As regards removal of restriction, Section 78 of the Land Registration Act provides that:- ***78. Removal and variation of restrictions*** ***(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 affected by the restriction an opportunity of being heard, order the removal or variation of a restriction.*** ***(2) Upon the application of a proprietor affected 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 fit, and may make an order as to costs.*** 1. The above provision gives three ways in which a restriction can be removed, which are:- 2. *Removal by the Land Registrar on application by any interested party;* 3. *Removal by the Land Registrar of his own motion; and* 4. *Removal pursuant to an order of the Court.* 5. Despite being served and filing a Grounds of Opposition, the Respondent did not give any reason explaining why the restriction, which has been in existence for 22 years now since being lodged in the year 2004, should be allowed to persist. The main ground offered by the Respondent why the court should not grant the orders sought is that the Applicant failed to comply with the statutory procedure for removal of the restriction. That aside, no tangible reason has been presented justifying why this court should allow an illegal restriction, registered contrary to legal and procedural requirements, to continue in force. 6. Indeed, Section 78 does provide that a Land Registrar can remove a restriction without reference to this court. Nevertheless, it is evident from the above provisions of law that the Court has power to remove any restriction on a title to land. Furthermore, there is nothing in Section 78 above that limits the jurisdiction of the court to Appeals from the decisions of the Land Registrar on removal of restrictions. Moreover, as already stated, registering a restriction on the parcel of land without notice and without conducting the requisite inquiries was a breach of the Applicant’s right to be heard before any administrative action is taken under Article 47 of the Constitution. That notwithstanding, the restriction itself has resulted in the breach of his right to enjoy his property herein contrary to Section 24 of the Land Registration Act, and Articles 40 of the Constitution of Kenya. 7. Notably, it has been well over twenty two years since the restriction was imposed on allegation of fraud. From the wording of the restriction on the register of the suit parcel, there was no indication that the Respondent or other investigative agency was undertaking investigations towards uncovering the alleged fraud. It is also telling that no investigation report was presented before this court to show that the investigations if any have since concluded. Moreover, the Attorney General has not indicated that recovery proceedings were filed against the Applicant with respect to the suit property on the basis of the alleged fraud. 8. Article 40(3) of the Constitution bars the State from depriving a person of property of any description, or of any interest in, or right over, property of any description unless certain conditions are met. Therefore, Article 47 of the Constitution must be complied with before a person is deprived of his or their interest in property of any description or his interest therein is restricted. As matters stand, the Applicant’s right to property has been held in abeyance for over 22 years without reason, justifiable cause or a foreseeable end. 9. Having looked at the pleadings herein and the rival submissions filed on behalf of the parties herein, I have serious doubts as to whether the Hon. Attorney General took time to understand what exactly this suit is about. I note that while the present Application is with respect to a property known as Eldoret Municipality/Block 21(King’ong’o)/1946, the Hon. AG in the Grounds of Opposition speaks of Eldoret Municipality Block 6/76. Notably also, in the Grounds of Opposition, the Hon. Attorney General repeatedly spoke of the removal of a caution. In my view, it is the Hon. Attorney General who was under a misconception as to the nature of the application as well as the applicable law. 10. That notwithstanding, in the present case, there is no evidence that the Land Registrar, Uasin Gishu County complied with the provisions of section 76 and 77(1) of the Land Registration Act. For this reason, this Court has no option but to find that the restriction placed on the suit land is tainted with procedural irregularity. 11. The Applicant has demonstrated that he is the registered proprietor of the suit property and that the Respondent has no basis for continuing to have a restriction lodged against the title to the suit property. In the absence of any reasonable cause shown by the Respondent as to why the said restriction should not be lifted, the present application for the removal of the same must succeed. 12. **Who shall bear the costs of the suit?** 13. With regard to the issue of costs, Section 27 of the Civil Procedure Act provides that costs of an action or proceedings are at the discretion of the Court. It further provides that costs shall follow the event. Under this provision, a successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. 14. The Applicant in this suit has clearly succeeded in his quest to have the restriction removed, and is entitled to the costs of the suit. While a court can deviate from the general rule that costs follow the events where there exists justifiable cause to do so, no such exceptional circumstance exist herein. Therefore, the Court finds and holds that the Applicant, being the successful litigant, is entitled to the costs of the suit and proceeds to awards him the said costs. **Orders:** 1. Consequently, I do hereby find that the Applicant’s Notice of Motion Application dated 8th April, 2026 has merit, and issue the following orders:- 2. The restriction lodged on land parcel ELDORET MUNICIPALITY 21(KING’ONG’O/1946) by the Respondent on 5th February, 2004 be lifted. 3. The Applicant herein shall cause the orders issued herein to be served upon the Land Registrar Uasin Gishu County for compliance. 4. The costs of the instant application shall be borne by the Respondent. 5. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **30TH** day of **JULY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the virtual presence of; Mr. Muhoro for the Applicant. Mr. Kwame for the Respondent. Court Assistant - Laban.