https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2981

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAKURU** **ELCC NO E012 OF 2025** **THERESIA WAKARIMA MANYARA (suing as the legal representatives of the Estate of Richard Kungu Manyara - deceased) ………………...PLAINTIFF** **VERSUS** **THE ATTORNEY GENERAL ………….………………………. DEFENDANT** **JUDGMENT** 1. By a Plant dated13th February 2025, the Plaintiff herein sued the Defendant seeking the following orders: 2. ***A declaration that the defendants whether by themselves, their servants, agents, employees or any other persons whosoever and the then Ministry of Infrastructure, Housing and Urban Development and their successor have or illegally placed a caveat against the suit land known as Land Reference Numbers Nakuru Municipality Block 12/111.*** 3. ***The Defendant and or Ministry, its Successors or caveator do remove the Restriction.*** 4. ***General Damages*** 5. ***Costs of this suit and interest.*** 6. ***Any other further relief that the court deems fit to grant.*** 7. The Defendant filed a defence, but neither filed a witness statement nor attended court during the hearing. The case is therefore undefended. **PLAINTIFF’S CASE** 1. PW1, Teresia Wakarima Manyara, adopted her witness statement dated 3rd December 2024, as her evidence and a list of documents dated 13th February 2025, and 8th December 2025, which she produced as Pex No. 1 to 9 respectively. 2. PW1 testified that she is the Legal representative of Richard Kungu Manyara (deceased), who was the legal and beneficial registered owner of LR No. Nakuru Municipality Block 12/111. 3. PW1 stated that they have been in possession of the land for more than 30 years and the late husband had a valid title deed. PW1 further testified that the Ministry of infrastructure, Housing and Urban Development, illegally registered a restriction against the title. She urged the court to grant the orders as prayed. **ANALYSIS AND DETERMINATION** 1. The issues for determination are whether the Court should order the removal of a restriction lodged on the suit land, LR No. Nakuru Municipality Block 12/111, and whether the Plaintiff is entitled to general damages together with costs. 2. Section 78 of the Land Registration Act provides as follows: ***“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.*** ***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. 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 Plaintiff had written letters to the Land Registrar requesting the removal of the restriction but she never got any response, hence she sought the intervention of the court. The Defendant was served, filed a defence, but never attended the court to explain why the restriction should continue being in force. 2. In the case of **John Kamau Kinyanjui v Thika District Land Registrar [2017] KEELC 714 (KLR),** the court stated as follows: ***“It is apparent therefore that the court has discretion to make an order for removal of any restriction placed on a title. However as usual, the said discretion must be exercised judicially.”*** 1. In the case of **Boyes Vs Gathure (1969) EA 385,** the Court of Appeal held that: ***“… a caveat is intended to serve a twofold purpose: on the one hand, it is intended to give the caveator temporary protection, and on the other, it is intended to give notice of the nature of the claim to the person whose estate in the land is affected and to the world at large.”*** 1. Similarly, in the case of **Sammy Nganga Ngatiri S.S Vs. George Ngatiri & 2 Others (2021) eKLR,** the court held that a caveat/caution should only serve as a temporary measure, and should not be used to limit or deprive the applicant of his right to property indefinitely. Lodging a caveat/caution in itself is not illegal, as it is meant to preserve the suit property pending the adjudication of the ownership dispute, but a person must follow the laid down procedures provided under Sections 71 to 75 of the Land Registration Act. 1. Consequently, I find that the Plaintiff has proved her case on a balance of probabilities, and make the following specific orders: 2. ***The Land Registrar, Nakuru, is hereby ordered to lift the Restriction placed on the property known as NAKURU MUNICIPALITY BLOCK NO. 12/111 within 14 days failure to which it stands removed by this order.*** 3. ***Each Party to bear their own costs.*** **DATED, SIGNED AND DELIVERED AT NAKURU THIS 19TH DAY OF MAY 2026.** **M. A. ODENY** **JUDGE**