https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5143

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCL MISC. E008 OF 2025** **K-UNITY SAVINGS AND CREDIT** **CO-OPERATIVE SOCIETY LIMITED ………….......….....…..……... APPLICANT** **VERSUS** **LAND REGISTRAR, KIAMBU ……………..….……........….… 1ST RESPONDENT** **HON. ATTORNEY GENERAL……….…………......…………...2ND RESPONDENT** **GATAMAIYU DAIRY FARMERS** **CO-OPERATIVE SOCIETY LIMITED………………....……...3RD RESPONDENT** **LIMURU POSHO MILLS LIMITED………………....…………4TH RESPONDENT** **RULING** 1. Before this Court for determination is an application dated 8th January 2025. The Applicant, seeks, among others, that this Court issues an order compelling the Land Registrar to lift the restriction registered against the land parcel number **GATAMAIYU/KAGWE/T.146** on 22nd September 2016 by the 4th Respondent. 2. The application is premised on the grounds that, the 3rd Respondent is the registered owner of the parcel of land title number **GATAMAIYU/KAGWE/T.146**. The Applicant avers that it offered a loan facility of Kenya Shillings two million (KES 2,000,000) to the 3rd Respondent which was secured against the suit Property vide a legal charge dated 13th August 2004. It now wishes to exercise its statutory power of sale but the same is impossible with the Restriction in place. 3. The particulars of the Restriction are that the same is to remain in force pending judgment in Limuru **Civil Suit No. 36 of 36 of 2015: Limuru Posho Mill Ltd –vs- Gatamaiyo Dairy Farmers’ Cooperation.** 4. In the Affidavit in support of the application sworn by Simon Njenga, the Applicant has annexed a Green Card showing the history of the transactions together with a search of the suit property. 5. The Applicant avers that they made an application to the 1st Respondent as persons having an interest on the suit property to have the Restriction removed after the conclusion of the case but the 1st Respondent has refused to do so. 6. The 4th Respondent, in response to the application contends that the Applicant has not provided adequate information as to its assertions. The 4th Respondent contends that the Applicant has not disclosed what transpired between them and the 3rd Respondent for the period between the registration of the charge to the point of filing the instant application. They query the long duration of the subsisting charge that was registered against the suit property in 2004. 7. The 4th Respondent submits that a green card itself cannot be proof of the Applicant’s assertions of the existing charge. Further the 4th Respondent contends that the Applicant has not provided proof of defaulted obligations. 8. The 4th Respondent also filed a Notice of Preliminary Objection dated 25th February 2026. In the objection, the 4th Respondent prays that the application herein be dismissed with costs as the orders sought by the Applicant are administrative in nature and should be initiated through a judicial review application. ***ANALYSIS AND DETERMINATION*** 1. It is not in contention that the parcel of land known as **GATAMAIYU/ KAGWE/T.146** (the Suit Property) is registered in the name of Gatamaiyu Dairy Farmers Co-operative Societies Limited, the 3rd Respondent. 2. The search submitted by the Applicant indicates that the suit property is charged to Kiambu Dairy & Pyrethrum Cooperative Union Ltd to secure credit facility of Kenya Shillings two million (KES 2,000,000). 3. The above information is replicated in the green card annexed to the Applicant’s supporting Affidavit save that there is an entry six “6” entered therein stating that a restriction is entered pending judgment in ***Limuru Civil Suit No. 36 of 2015: Limuru Posho Mill Ltd –vs- Gatamaiyo Dairy* *Farmers’ Cooperation.*** 4. The Applicant has moved this Court specifically for an order that the Restriction placed therein by the 1st Respondent be lifted by order of this Court after the said Respondent failed to do so despite an application made to them by the Applicant. 5. The Applicant contends that it is formerly known as Kiambu Dairy and Pyrethrum Cooperation Limited and that it changed its named to K-Unity Savings and Credit Co-operative Society Limited. In its Supplementary Affidavit, the Applicant has annexed a copy of the Certificate of Change of Name. The Applicant therefore rightfully brings this application as a party with legal and or proprietary interest in the suit property. 6. Clearly, there is no dispute relating to the exercise of a chargee’s power of sale of charged property as set out under Section 90 of the Land Act. This Court is called upon to make a determination as to whether the 1St Respondent, the Land Registrar, Kiambu should be compelled to lift the Restriction placed and registered against the suit property. 7. Section 76 of the Land Registration Act provides for the registrations of restrictions on property as follows: ***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—*** 3. ***for a particular period;*** 4. ***until the occurrence of a particular event; or*** 5. ***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* 1. *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.* 2. Subsection (2) herein above provides for the period when a restriction is supposed to endure being: 3. ***for a particular period;*** 4. ***until the occurrence of a particular event; or*** 5. ***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.*** 6. I have had the liberty of looking at this Court’s judgment in **Gatamaiyu Dairy Farmers Co-operative Society Ltd v Limuru Posho Mill Ltd (Civil Appeal E039 of 2024) [2026] KEHC 8722 (KLR) (19 June 2026)** **(Judgment)** as delivered by my brother Justice Kennedy Kandet. The said judgment was in respect of an appeal from the impugned proceedings of the subordinate Court in Limuru Civil Suit No. 36 of 36 of 2015: Limuru Posho Mill Ltd –vs- Gatamaiyo Dairy Farmers’ Cooperation. 7. I take note that the Applicant herein was not a party to the said suit. From the proceedings before the subordinate court in Limuru, the 4th Respondent was successful in the suit where he sought to enforce a decree awarded in its favour against the 3rd Respondent by disposing of the suit property. It is clear therefore that there are valid and competing interests on the suit property between the 4th Respondent and the Applicant as both have legitimate interests on the same. 8. However, as stated earlier in this Ruling, what is before the Court is not the various interests as stated but the application against the 1st Respondents decision not to lift the restriction placed despite being moved as such. 9. The Applicant has supplied the Court with a copy of the green card showing the history of the transactions in the suit property. The green card is indeed an authoritative record of the history of the land and registered encumbrances thereon. 10. The Restriction placed had a specific lifetime. It was to remain in force until the conclusion of the case in the subordinate court which was ventilated to its logical conclusion as evidenced in the decree emanating from the said Court. 11. Section 78 of the Land Registration Act provides for the removal of such a Restriction. The act provides thus: ***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. From the above, it is clear from the contention as set out in the 4th Respondents Preliminary Objection that indeed there is an administrative step required where an application is to be made to the Registrar for the removal of the Restriction. 1. However, in addressing the Preliminary objection raised by the 4th Respondent herein, I refer to the decision of the Supreme Court of Kenya in **Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) in its Ruling on a Preliminary Objection** endorsed the principle in **Mukisa Biscuits Manufacturing Co. Ltd v. West End Distributors [1969] EA 696:** *“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 … 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 has to be ascertained or if what is sought is the exercise of judicial discretion.”* 1. In **Aviation & Allied Workers Union Kenya v. Kenya Airways Ltd & 3 Others, Application No. 50 of 2014, [2015] eKLR**, the Court further stated [paragraph 15*]:* *“Thus a preliminary objection may only be raised on a ‘pure question of law’. To discern such a point of law, the Court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.”* 1. The Court went ahead and concluded that: “*It is quite clear that a 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 are incompatible with that point of law*.” 1. From the Preliminary Objection by the 4th Respondent herein, the question begs, what pure point of law the Respondent has raised in the preliminary objection? The question as to whether the process of the lifting of the restriction herein is an administrative process or not, requires the examination of the facts and or the merit of the application raised therein. 2. It is settled from various decisions of this Court that this court has the discretion to make an order for the removal of a restriction upon satisfying itself that the Applicant has proved that the Land Registrar has failed to comply with the provisions under Section 78 (1) of the *Land Registration Act* and the court will therefore apply Section 78 (2) which states that: “*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. From the above premises therefore, the 4th Respondent’s Preliminary Objection dated 25th February 2026 fails. 2. Faced with a similar set of facts, in the case of***Republic v Land Registrar, Nyeri County Registry & another; Markerryl Company Limited (Exparte Applicant)* [2025] KEELC 2928 (KLR),** this court pronounced as follows at paragraphs 24 and 25:24. *“It was also apparent that when the Applicant came to learn of the restriction, they wrote a letter to the Respondents herein dated 8th April, 2024 seeking for the removal of the restriction. It is the Applicant’s case that the 1st Respondent has to-date failed to act upon and/or respond to the said request* *It is to be noted that the removal of a restriction is provided for under Section 78(1) of the Land Registration Act as follows:* *“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.”* *After receiving the Applicant’s application, for the removal of the Restriction as a charge with interests in the Suit Property, it was incumbent upon the Land Registrar to conduct a hearing to give all the parties affected by the restrictions an opportunity of being heard and thereafter order the removal or variation or retention of the restriction. By failing to notify the Applicant of the imposition of the restriction and again failing to hear them when they applied for its removal, the 1st Respondent acted illegally and failed to comply with the mandatory provisions prescribed by the empowering statute law to the detriment of the Applicant.* 1. Similarly in the case of ***Joyce Waithira Mwangi v Thika Land Registrar* [2018] eKLR,** the court ordered the removal of a restriction and held that: *“It is evident from the above provisions of law that the Court has power to remove any restriction on a title to land. The Respondent did not appear in Court to explain why the restriction should not be removed even after the person who applied to have it registered has applied for its removal. This Court therefore finds no reason why the said restriction should remain on the said title and consequently, the Court finds that the Applicant’s Notice of Motion dated 26th May 2016 is merited.”* 1. The Applicant avers that it made an Application to the 1st Respondent (who has not participated in these proceeding, for the removal of the Restriction on 7 October 2024 and to date the same has not been acted upon. 2. From this Court’s record, I also note that the 1st Respondent was served on various occasions but they have failed to participate in the suit. 3. Accordingly, I find that the Notice of Motion Application dated 8th January 2025 has merit and make the following orders: 4. ***The Land Registrar, Kiambu, is hereby ordered to lift the Restriction placed on the land parcel number GATAMAIYU/KAGWE/T.146 within 21 days hereof failure to which it stands removed by this order*** 5. ***The 1st Respondent shall bear the Costs this application.*** It is so ordered. **Dated, signed and delivered, virtually at Malindi this 28th day of July 2026.** …………….………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** 1. Mr. Wanda for Mr. Juma for the Applicant 2. Mr. Ngige for the 4th Respondent.