https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4874

Muriuki & 3 others v Land Registrar, Kirinyaga County (Environment and Land Case 60 of 2018) [2026] KEELC 4874 (KLR) (29 July 2026) (Ruling) Neutral citation: [2026] KEELC 4874 (KLR) Republic of Kenya In the Environment and Land Court at Kerugoya Environment and Land Case 60 of 2018 SM Kibunja, J July 29, 2026 Between Fredrick Miano Muriuki 1st Applicant Joseph Kinyua Muriuki 2nd Applicant Jane Muthoni Kabari 3rd Applicant Geofrey Muriuki Kimondo 4th Applicant and The Land Registrar, Kirinyaga County Respondent Ruling [Notice of Motion Dated 5th March 2026] 1.The applicants moved the court through the application dated 5th March 2026 seeking for primarily an order directing “the Land Registrar, Kirinyaga County, to remove, discharge and/or withdraw the restrictions/injunctions lodged against the titles of land parcel numbers Mwerua/Kanyokora/937, 938, 939, and 940 on 23rd August 2018 and 5th February 2018 respectively, anchored on the basis of pending the hearing and determination of the instant suit,” that was settled through the mediation settlement agreement filed on 22nd August 2023 in KRG/MED/066/2023.The application is predicated on the ten (10) grounds on its face marked (a) to (j) respectively. 2.The application is supported by the affidavit of applicants sworn on 5th March 2026, in which they deposed inter alia that they are the registered proprietors of the above listed parcels of land, and therefore vested with legitimate rights and interests over the same, including the right to sell, alienate and subdivide the same; that the respondent had in 2018 filed this suit against them seeking for permanent injunction against them and a declaration that they hold the lands in trusts, and he should get a half share of the same; that a restriction was placed on 23rd August 2018 through Wangeci Munene & Company advocates letter reference WN/GEN/2018 dated 20th August 2018, and a permanent injunction pending the hearing and determination of the suit was placed on 5th February 2019; that the suit was referred to mediation and settled vide KRG/MED/066/2023 and filed in court on 22nd August 2023; that the mediation settlement agreement was adopted as an order of the court on 19th May 2025; that the restriction/injunction should be lifted as the suit has been heard and determined to enable them comply with the decree. 3.The application is opposed by the respondent through the grounds of opposition dated 30th March 2026, stating inter alia that the applicants have not made any request in writing to the Land Registrar seeking for the removal of the restriction/injunction over Parcels Mwerua/Kanyokora/938 to 940, and their application is therefore premature and should be dismissed with costs. 4.The application came up for hearing on 20th April 2026, in the presence of 1st, 2nd and 4th applicants. The 2nd applicant addressed the court on behalf of the applicants, and sought for the application to be granted as prayed. He pointed out that though the respondent had been served, no replies had been filed. The court fixed the application for ruling today to enable it peruse the record. 5.The application raises the following issues for the court’s determination:a.Whether the application is incompetent and or premature.b.Whether the applicants have made a reasonable case for the order sought to be granted.c.Who pays the costs? 6.The court has carefully considered the grounds on the application, affidavit evidence, grounds of opposition, the record and come to the following conclusions:a.The court has perused the record, both physical and CTS, and noted that the parties herein are represented by counsel. Indeed when the mediation settlement agreement was adopted as an order of the court on 19th May 2025, Ms. Mokaya, Ms. Eunice Kibe and Mr, Nderi advocates, were present for the plaintiffs, 3rd defendant and 1st, 2nd, & 4th defendants respectively. The four applicants in the instant application appeared as the defendants in the main suit that was commenced through the plaint dated 27th December 2018.b.The application dated 5th March 2026 is drawn, and filed by the four applicants in person. Considering that this suit was finally and formally decided on the 19th May 2025 when the mediation settlement agreement was adopted as an order of the court, the applicants were obligated to comply with Order 9 Rule 9 of the Civil Procedure Rules that provides that:“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgement has been passed, such change or intention to act in person shall not be effected without an order of the court-(a)upon an application with notice to all parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.”c.I have perused the court record and have not seen any application, or notice, or consent filed and served by the applicants communicating their intention to act in person, or any court order approving their intention to act in person that can be taken as a compliance with the above provision. The applicants’ failure to comply with Order 9 Rule 9 of the Civil Procedure Rules mean their application dated 5th March 2026 is improperly before the court and is for striking out.d.Section 78 of the Land Registration Act No, 3 of 2012 provides for removal and variation of restrictions as follows:“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 parties affected by the restriction an opportunity of being heard, order the removal or variation of 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.”The applicants herein have through their deposition at paragraphs 12 to 14 of their supporting affidavit, shown that they knew of the Land Registrar’s power in removal of the restriction.e.They have, however, not disclosed or exhibited any evidence that they had prior to the filing this application formally moved the Land Registrar to lift the restrictions. The application therefore runs afoul the doctrine of exhaustion, and the respondent’s contention that the application is premature has merit insofar as the restrictions filed on 23rd August 2018 are concerned. I, however, hasten to add that the Land Registrar is without power to remove injunction filed pursuant to a court order, as that is the province of the court.f.That the findings in (c) to (e) above, suffices to dispense with the application through striking out order, and the court does not need to consider whether the applicants have made a reasonable case for the orders sought to be granted.g.Under Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya, costs follow the events unless where the court directs differently on good grounds. The applicants filed the application against the respondent who was not a party in the proceedings without first complying with Section 78 of the Land Registration Act. They therefore caused the respondent to incur expenses instructing counsel, and filing reply in form of grounds of opposition. The applicants have lost in their quest, and I find no good cause why they should not pay the respondent’s costs. 7.Flowing from the conclusions arrived at as set out above, the court finds and orders as follows:a.That the application dated 5th March 2026 is without merit and is struck out.b.The applicants to pay the respondent’s costs.It is so ordered. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 29TH DAY OF JULY 2026S. M. KIBUNJAELC JUDGEIn the presence of:Applicants – 1st, 2nd and 3rd Applicants.Respondent – Mr. Kiongo.Charles/Kinyua - Court AssistantsS. M. KIBUNJAELC JUDGE