[2023] KEELC 18603 (KLR)

Nzulu v County Land Registrar Machakos (Miscellaneous Application E054 of 2021) [2023] KEELC 18603 (KLR) (6 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18603 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Miscellaneous Application E054 of 2021

A Nyukuri, J

July 6, 2023

IN THE MATTER OF AN APPLICATION UNDER SECTION 78 (2) OF THE LAND REGISTRATION ACT

Between

Twili Mwasa Nzulu

Applicant

and

County Land Registrar Machakos

Respondent

Ruling

Introduction 1. Before court is a Chamber Summons dated 3rd September 2021 filed by the Applicant herein seeking the following orders;a.The Respondent be ordered by this Honourable Court to remove the restriction that was registered against the parcel of land known as Machakos/katangi/401 since there is no basis for keeping the restriction that was entered against the register.b.The Applicant be given her title deed by the County Land Registrar forthwith since it is being retained without any basis.c.The court do order the Respondent to remove the restriction in the register and give the Applicant her title deed and in default be punished by the court for contempt of court.d.The Respondent do pay the costs of this application.

2. The application is supported by the grounds on its face as well as the supporting affidavit sworn by Twili Mwasa Nzulu, the Applicant herein on 30th September 2021.

3. The Applicant’s case is that during the adjudication exercise at Katangi in Machakos District, the Applicant was registered as owner of Parcel No. Machakos/Katangi/401 (suit property). That the Applicant was not issued with a title deed when all objections or appeals before the Minister were dealt with and thereafter the County Land Registrar placed a restriction on the title of the suit property on 16th March 1993 to the effect that there should be no dealings on the said title without the order of the County Land Registrar. That the restriction indicated that there should be no dealings on the title until the appeal before the Minister was finalized when there was no such appeal. That the pendency of the restriction on the title of the suit property is baseless and unlawful yet the Respondent has refused to have it removed. He attached search certificate and a letter to the County Land Registrar dated 10th August 2021.

4. In response, Mwangangi Wambua the Adjudication Officer in the Ministry of Lands and Physical Planning filed a replying affidavit sworn on 26th April 2022 on behalf of the Respondent. It was the Respondent’s case that the suit property was subject to an objection to adjudication register case filed by one Muthoka Nzuma Mwilu against Twili Mwasa Nzulu the Applicant herein. Further that the objection was heard and determined and a decision made in favour of the Applicant on 8th February 1989.

5. The Respondent further stated that the objector Mr. Muthoka Nzuma Nzulu filed an appeal to the Minister vide Case No. 449 of 1996. That the said appeal was heard by the Deputy County Commissioner – Yatta and the same was determined on 28th March 2017 by an order dismissing the appeal. He asserted that the Land Adjudication and Settlement department had prepared and forwarded implementation order to the Chief Land Registrar in line with Section 29 (3) of the Land Adjudication Act for the restriction to be removed on the title of the suit property and for the property to be registered in the Applicant’s name. the Respondent took the view that the application herein should be dismissed with no order as to costs as the matter is currently being handled by the Chief Land Registrar to ensure the restriction is removed and a title deed issued to the Applicant. He attached a copy of the objection proceedings, ruling and duplicate adjudication record and letter to the Chief Land Registrar.

Analysis and Determination 6. I have carefully considered the application as well as the response. The sole issue that arise for determination is whether the Applicant deserves the orders sought.

7. Section 28 of the Land Adjudication Act empowers the Chief Land Registrar to effect registration in accordance with the adjudication register, but where the land is affected by an Appeal under Section 29 of the Act, a restriction must be registered in respect of the land expressed to endure until the determination of the appeal. The register can only be altered after determination of the appeal and shall be in accordance with such determination.

8. Section 29 (3) of the Land Adjudication Act provides for actions subsequent to the determination of the appeal before the Minister as follows;When the appeals have been determined, the Director of Land Adjudication shall –a.Alter the duplicate adjudication register to conform with the determinations; andb.Certify on the duplicate adjudication register that it has become final in all respects; and send details of the alterations and a copy of the certificate to the Chief Land Registrar, who shall also alter the adjudication register accordingly.

9. Therefore the Chief Land Registrar and not the County Land Registrar is the one with the mandate to alter the adjudication register in accordance with the decision of the Minister upon determination of an appeal. In this case, the Applicant has sought to compel the County Land Registrar to remove a restriction placed on his title by the Chief Land Registrar, the restriction having been placed on his title pursuant to the provisions of Section 28 of the Land Adjudication Act.

10. Having considered the application and the response, I note that the suit property was on 16th March 1993 registered in the Applicant’s name and a restriction registered on the title on the same date, to the effect that the restriction was to subsist except by the order of the Chief Land Registrar and that there should be no dealings registered against the title until the appeal has been finalized.

11. The Respondent through the Adjudication Officer confirmed in his response that the appeal which was the basis of the restriction had been finalized and that the Land Adjudication and Settlement department has prepared and forwarded the implementation order to the Chief Land Registrar in line with the provisions of Section 29 (3) of the Land Adjudication Act so that the restriction order can be removed against the Applicant’s title. The Respondent attached a letter dated 20th April 2022 addressed to the Chief Land Registrar Nairobi, communicating the decision of the minister and advising that the action to be taken is removal of the restriction on the title and registration of the same in the Applicant’s name. The Adjudication Officer also certified the adjudication register as final. Having considered the Applicant’s evidence, I note that the Applicant wrote to the County Land Registrar Machakos on 10th August 2021 asking for the removal of the restriction. In that letter no disclosure as regards the appeal was made. It is my view that the process of adjudication leading to the removal of the restriction after determination of an appeal by the minister, is a process undertaken by the Land Adjudication and Settlement department and the office of the Chief Land Registrar. A County Land Registrar has no power in law to remove a restriction registered against a title under Section 28 of the Land Adjudication Act. Therefore, as this suit by the Applicant is against the County Land Registrar Machakos, seeking for orders to compel him to remove a restriction registered against the Applicant’s title, I find and hold that the same is a misguided suit, which cannot succeed, as the County Land Registrar has no mandate in law to execute the functions of the Chief land Registrar under Section 29 (3) of the Land Adjudication Act. In any event, this court cannot issue orders in vain as compelling an officer to do that which he cannot do would be in vain.

12. In the premises, I find no merit in the chamber summons dated 3rd September 2021. The same is hereby dismissed. Each party shall bear its own costs.

13. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 6TH DAY OF JULY, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the Presence of;Ms Kaloki holding brief for Mr. Masika for the ApplicantNo appearance for Attorney General for RespondentJosephine – Court Assistant