https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5105

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELCLMISC E005 OF 2025** **PAUL MBUGUA MUNGAI…………………………..……………..APPLICANT** **VERSUS** **THE LAND REGISTRAR RUIRU……………………..……….1ST RESPONDENT** **GITHUNGURI CONSTITUENCY** **RANCHING CO. LIMITED…………………………….…….2ND RESPONDENT** **RULING** 1. This Ruling is in respect of the Notice of Motion Application dated 20/01/2025 by the Applicant. It is brought under Order 51 Rules 1 of the Civil Procedure Rules 2010; Section 78(2) of the Land Registration Act, 2012, Section 3 of the Environment and Land Court Act, 2012 Cap 12 (A) of the Laws of Kenya and all other enabling provisions of the law. The Applicant in bringing the Application is seeking the following Orders: 2. **THAT** this Honourable Court be pleased to order the 1st Respondent to remove and/ or lift the restriction lodged against title number Ruiru/ Kiu Block 2/ 16841 by the 2nd Respondent herein. 3. **THAT** this Honourable Court do make any such further orders and issue any other relief as it may deem just to grant in the interest of justice. 4. **THAT** the costs of this Application be provided for. 5. The Application is based on the grounds on the face of it and supported by the Affidavit sworn by Paul Mbugua Mungai on even date. 6. The Applicant, deposes that they are the registered and lawful proprietor of all that parcel of land known as Title Number: Ruiru/Kiu Block 2/16841, a fact verified by a true copy of the Certificate of Title annexed to the Affidavit and marked as **"PMM-1"**. 7. The Applicant avers that upon conducting a recent official search at the relevant land registry, it was discovered that a restriction had been irregularly and unlawfully lodged against the absolute title by the 2nd Respondent. The official Search Certificate showing the subsistence of the impugned restriction is annexed and marked as **"PMM-2"**. 8. The Deponent further states that the 2nd Respondent has no justifiable legal or equitable interest in the suit property to warrant the continued maintenance of the said restriction. Consequently, the Applicant underscores that the restriction is a gross violation of their constitutional right to property under Article 40 of the Constitution of Kenya and continues to cause them immense prejudice by freezing their power of absolute ownership and dealing. 9. To demonstrate their attempts to resolve the matter amicably before approaching this Honourable Court, the Applicant has annexed demand letters served upon the Respondents, marked as **"PMM-3"**, which have elicited no positive response. The Applicant therefore prays that this Honourable Court finds the application merited and grants the orders sought in the Notice of Motion in the interest of justice. 10. The 1st Respondent did not enter appearance and did not participate in the application. The 2nd Respondent has opposed the Application and filed a Replying Affidavit sworn by John Maina Mburu on 30/09/2025, who is the current chairman and director of the 2nd Respondent. 11. The deponent supported his authority to represent the 2nd Respondent by producing a certified board resolution under the company’s seal, annexed and marked as **"JMM 1"**. 12. The Deponent avers that the original parcel of land known as **LR No. Ruiru Kiu Block 2/4367**, which has since been subdivided into ten sub-plots running from **Ruiru Kiu Block 2/16827 to 16846** (collectively referred to as the suit parcels), constitutes part of a vast land-buying scheme owned by the 2nd Respondent. He explains that the company operates a share-to-land conversion model established in 1968, where members pay for shares, receive Share Certificates, and subsequently ballot for specific land allocations within the company's designated blocks. 13. In traversing the Applicant's claim of ownership, the 2nd Respondent categorically denies that the original parcel (Block 2/4367) was ever allocated to the Applicant, Paul Mbugua Mungai. Instead, company records indicate that the parcel was lawfully allocated to Herman Njenga under ballot number 1685. To substantiate this assertion, the Deponent relies on a certified extract of the official company ballot register, annexed and marked as **"JMM 2"**. 14. To support this claim the Deponent further discloses a historical survey complication where Herman Njenga (ballot No. 1685) was erroneously given possession of an adjacent parcel, **Ruiru Kiu Block 2/3766**; corresponding to ballot No. 1684. When the rightful claimant of ballot No. 1684, Joseph Gathecha, came forward, the 2nd Respondent interceded and mediated a resolution. It was mutually agreed that both parties would swap their respective parcels. This amicable settlement is evidenced by a copy of the land swap agreement annexed and marked as **"JMM 3"**. 15. It is the 2nd Respondent’s case that during the execution of the land swap, it was discovered that the Applicant had illegally and fraudulently procured a title deed for Ruiru Kiu Block 2/4367 despite having no membership, shares, receipts, or allocation history with the company. The Deponent notes that the Applicant intentionally boycotted a summons by the Board of Directors to show cause and verify his ownership documents. Furthermore, the Applicant went ahead to secretly subdivide the property. 16. The Deponent clarifies that the Land Registrar registered the impugned restrictions lawfully after inviting both parties for a hearing an invitation the Applicant failed to honor. Additionally, the Court's attention is drawn to the fact that the ownership and swapping of these parcels are already the subject of active litigation before the Subordinate Court in **SPMCC Ruiru Suit No. MCL&E 047/2022 (Joseph Kimani Gathecha vs. Peter Maina Ngugi, Herman Njenga Ruhangi, Githunguri Constituency Ranching Co. Ltd, and the Attorney General)**. 17. The 2nd Respondent maintains that lifting the restriction prematurely will cause irreparable prejudice and allow the Applicant to alienate, transfer, or charge the illegally subdivided portions. The Deponent therefore prays that the restrictions be maintained in the interest of justice until a proper determination of ownership is conclusively established. 18. The Applicant was canvassed by way of written submissions. The Applicant filed their submissions dated 23/02/2026 whereas the 2nd Respondent filed theirs dated 3/02/2026. **Applicant’s Submissions** 1. The Applicant has submitted that the underlying substratum of his claim is rooted in historical entitlement. That in the early 1990s, the Applicant’s deceased father, Peter Mungai Ng'ang'a, a bona fide member of the 2nd Respondent, systematically purchased 100,000 shares in the name of the Applicant, who was a minor at the material time. Upon attaining majority status, the Applicant was formally allocated the original mother parcel, Ruiru Kiu Block 2 (Githunguri) 4367, paid the requisite statutory fees, and was subsequently issued a clean Title Deed on 9th May 2002. The Applicant afterwards subdivided the property and gainfully dealt with the derivative sub-plots until the 2nd Respondent, without legal justification, moved the Land Registrar to lodge the entry of a prohibitive restriction against the suit register on 28/07/2020. 2. In canvassing the primary issue for determination; which he identifies to be whether due statutory process was adhered to, the Applicant invokes Section 76(1) of the Land Registration Act, 2012, to demonstrate that the 1st Respondent acted in flagrant violation of procedural fairness and the rules of natural justice by unilaterally placing the restriction without issuing notices or affording the absolute proprietor a right of audience. To reinforce this position, the Applicant relies on the locus classicus of **Republic v National Land Commission & another Ex-Parte Esther Waringa Ndirangu & 2 others [2015] KEHC 7516 (KLR)** and **Itrade Company Limited v Jane Mukami Mwangi & Another [2015] eKLR,** where the Courts firmly established that registering a restriction without granting the registered owner an opportunity to make representations constitutes an unconstitutional procedural impropriety. 3. Furthermore, referencing **Republic v Chief Lands Registrar & Ex-parte Nairobi Steam Laundry & Dry Cleaners [1978] Ltd [2019] KEELC 1159,** which adopted the judicial rationale in **Matoya vs. Standard Chartered Bank (K) Ltd. & Others [2003] 1 EA 140,** the Applicant contends that the Land Registrar must not exercise power based on whim or caprice. The Applicant also cites **David Macharia Kinyuru v District Land Registrar, Naivasha & Another [2017] eKLR** to demonstrate that a restriction must be strictly limited in time to allow for the ventilation of a claim, rather than acting as an indefinite freeze on absolute property rights. 4. Regarding the validity of the 2nd Respondent’s claim, the Applicant argues that the corporate entity lacks any locus standi or basis to dispute a legal title that has been twenty years of unchallenged existence. The Applicant submits that the 2nd Respondent's proper recourse would have been the institution of substantive proceedings for cancellation, which it failed to do, and relies on the precedent of **Paul Mbugua Mungai v Land Registrar, Ruiru & Another; Herman Njenga Ruhangi (Interested Party) [2022] eKLR**, which previously lifted identical restrictions between these identical parties on the basis that the Respondents had failed to show cause. 5. To seal the absolute protection of first-in-time registration, the Applicant cites the Court of Appeal decision in **Benja Properties Limited v H.H. Dr. Syedna Mohammed Burhannudin Sahed & 4 Others [2015] eKLR,** which validated the historic holdings in **Wreck Motors Enterprises vs. Commissioner of Lands (CA No. 71/1997) and Faraj Maharus vs. T.B. Martin Glass Industries and 3 Others (CA 130/2003)**, confirming that an earlier grant takes absolute priority over subsequent paper transactions. Coupled with the fact that police investigations into the 2nd Respondent’s criminal complaints closed without any preferred charges against the Applicant, the Applicant prays that this Honourable Court finds the application highly meritorious and grants the prayers as prayed with costs. **2nd Respondent’s Submissions** 1. In their submissions, the 2nd Respondent, has described itself as a historic land-buying company incorporated in 1968 with over 4,000 shareholders, outlines its structured allocation process where members acquire plots strictly through share purchase receipts, Share Certificates, and an open balloting system. The 2nd Respondent contends that the suit property is a derivative portion hived off from the primary mother parcel, Ruiru Kiu Block 2/4367, which company records demonstrate was validly balloted for and allocated to Herman Njenga under ballot number 1685 on 25/02/1985. It is the 2nd Respondent's case that the Applicant is an outsider who holds no share capital, receipts, or clearance certificates from the entity, and who unprocedurally bypassed company protocols to illicitly procure a title deed over land belonging to a legitimate shareholder before surreptitiously subdividing it into ten portions. 2. In tackling the root of title, the 2nd Respondent submits that a land-buying company holds the ultimate administrative mandate to verify its corporate register, meaning that any title processed on a fraudulent foundation is voidable and cannot defeat a legitimate shareholder's certificate. To anchor this legal position, the 2nd Respondent cites the locus classicus of **Esther Ndegi Njiru & Another v Leonard Gatei [2014] eKLR,** where the Court established that a Land Registrar can only properly process a title against a validly issued clearance certificate from a ranching company, and that a title unlawfully procured without proper corporate clearance is of no legal consequence and cannot supersede the true owner’s Share Certificate. 3. The 2nd Respondent further relies on **James Njoroge Gitau v Lucy Chepkurui Kimutai [2018] eKLR** to reinforce the principle that in a straight contest over land ownership, litigants must demonstrate a verifiable root of title tracing back to the company's shares. Under this authority, the company’s internal register represents the most cogent evidence of assignment, and where the corporate body refutes membership, the burden shifts entirely to the claimant to rebut that position with incontrovertible proof, which the Applicant has failed to produce. 4. On the issues of procedural propriety and the merit of the application, the 2nd Respondent argues that the 1st Respondent did not act unilaterally or in breach of natural justice; rather, the Land Registrar formally summoned both parties for a statutory hearing, an invitation the Applicant willfully ignored, thereby leaving the Registrar with no choice but to register the restriction to prevent further fraudulent dealings. 5. Furthermore, the 2nd Respondent alerts the Court to the existence of an active, substantive ownership suit filed as **Thika ELC No. E016 of 2026 (Githunguri Constituency Ranching and Herman Njenga Ruhangi vs. Paul Mbugua and Others**), which directly litigates the root title of the mother parcel Ruiru Kiu Block 2/4367. The 2nd Respondent submits that lifting the restriction at this interlocutory stage would allow the Applicant to irretrievably alienate and charge the disputed subdivisions, thereby defeating the substratum of the pending main suit. Consequently, the 2nd Respondent prays that the status quo be maintained, the Notice of Motion be dismissed, and costs be awarded to the 2nd Respondent in accordance with the general rule that costs follow the event. **Analysis and Determination** 1. The twin issues that crystallize for determination in this application are; 2. *Whether the restriction lodged against Title Number Ruiru/Kiu Block 2/16841 was placed in conformity with the procedural requirements of the law, particularly Section 76 of the Land Registration Act, 2012; and,* 3. *Whether, notwithstanding any procedural infirmity, it would be just and equitable for this Court to exercise its discretion to lift the restriction at this interlocutory stage, given the competing proprietary claims disclosed on the record and the pendency of substantive litigation touching directly on the root of the Applicant's title.* 4. These two issues are inextricably linked because even where a restriction is found to have been improperly lodged, a Court of equity retains the discretion to decline to disturb the status quo if doing so would expose third parties or the justice system to irreparable harm. Conversely, a Court will not allow procedural propriety to be used as a shield to mask a restriction that is without any substantive legal foundation. 5. On the first issue, the procedural argument advanced by the Applicant calls for serious consideration. Section 76(1) of the Land Registration Act, 2012 provides the framework within which restrictions may be entered, and it is now well settled in our jurisprudence that the entry of a restriction without affording the registered proprietor a prior opportunity to be heard constitutes a fundamental violation of the rules of natural justice. The Court in **National Bank of Kenya Ltd v Inspector General of Police National Police Service & 2 Others [2020] eKLR** was emphatic that the Respondents' decision to place restrictions on the properties without notifying or hearing the bank breached the principles of natural justice, and that this violation rendered the decision null and void, as no administrative action can be valid without adherence to procedural fairness and the right to be heard. 6. However, the 2nd Respondent's replying affidavit contains a material averment that significantly complicates the Applicant's procedural case namely, that the Land Registrar formally summoned both parties for a statutory hearing and that it was the Applicant who wilfully declined to attend. If this assertion is accepted, then it is the Applicant who subverted the very natural justice protections he now seeks to invoke. The Applicant has not produced any evidence to contradict or rebut this averment, and an uncontroverted averment in a replying affidavit stands as admission for the purpose of the application before the Court. The procedural challenge therefore falters on its own facts. 7. Turning to the substantive dimension, which is the weightier of the two issues, the Applicant's position rests primarily on the indefeasibility of his registered title, issued in 2002 and unchallenged on the formal register for over two decades. The sanctity of title in our land registration system is anchored in Section 25(1) of the Land Registration Act, 2012, which clothes a registered proprietor with rights that are not liable to be defeated except as provided by the Act. Ordinarily, this shield is formidable. But the Court of Appeal in **Munyu Maina v Hiram Gathiha Maina [2013] eKLR** settled the boundaries of this protection in unmistakable terms, holding that; ***"When a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register."*** 1. This principle is decisive for the present application. The 2nd Respondent has placed before the Court not merely bare denials but a ballot register extract, a board resolution, and a sworn averment that the mother parcel Block 2/4367 was lawfully balloted to Herman Njenga under ballot number 1685 in 1985 predating the Applicant's title by seventeen years. 2. The Applicant, on the other hand, relies substantially on his certificate of title and the argument that twenty years of registered ownership cannot be impugned by the 2nd Respondent's internal records. Yet the very existence of active proceedings in **Thika ELC No. E016 of 2026,** in which the 2nd Respondent and Herman Njenga Ruhangi are suing to contest the root title of the mother parcel, demonstrates that the Applicant's claim is neither uncontested nor above challenge. 3. Whereas the Applicant places great reliance on the fact that a previous Court lifted an identical restriction in **Paul Mbugua Mungai v Land Registrar, Ruiru & Another [2022] eKLR**, the Court notes that a prior order made in the absence of substantive opposition and without the benefit of the fuller evidential picture now before this Court is not res judicata and cannot be determinative of the present application. Courts have consistently declined to allow the protective shell of prior interlocutory orders to operate as a permanent shield against fresh substantive challenges properly particularized. The title protections under Section 25 of the Act are removed and the title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party, or where it is procured illegally, unprocedurally, or through a corrupt scheme, as the Court affirmed in **Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others [2015] eKLR** and those are precisely the allegations that the pending substantive suit is poised to ventilate. **Final Determination** 1. Having carefully weighed the competing arguments and assessed the balance of convenience, this Court is not persuaded that this is an appropriate case for the lifting of the restriction at this interlocutory stage. The Applicant has not displaced the 2nd Respondent's prima facie showing that a bona fide ownership dispute underlies this matter, and the existence of substantive proceedings in **Thika ELC No. E016 of 2026** directly challenging the root of the Applicant's title is a material consideration that this Court cannot ignore. 2. At this interlocutory stage, the Court is not expected to pronounce itself with finality on any question of law or fact, and the appropriate forum for the resolution of the competing claims to the mother parcel is the substantive suit presently pending. Were this Court to lift the restriction now, the Applicant who has already subdivided the property into ten sub-plots would be at liberty to alienate, charge, or otherwise deal with those parcels, thereby defeating the substratum of the pending main suit and potentially rendering any eventual Judgment of the trial Court hollow and unenforceable. 3. The restriction, in these circumstances, operates as a necessary safeguard to preserve the subject matter of ongoing litigation, and maintaining it does not constitute a permanent deprivation of the Applicant's property rights but merely a temporary freeze pending judicial determination. 4. Based on the determination above, the final orders of the Court are as follows: 5. ***The Notice of Motion Application dated 20/01/2025 is hereby dismissed.*** 6. ***The restriction lodged against Title Number Ruiru/Kiu Block 2/16841 shall remain in place and is hereby upheld.*** 7. ***The said restriction shall subsist pending the hearing and final determination of Thika ELC No. E016 of 2026, or until further order of this Court, whichever is earlier.*** 8. ***The costs of this application shall be in the cause.*** Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS AT THIKA ON THIS 14TH DAY OF JULY 2026.** **…………………….** **MOGENI J** **JUDGE** **In the presence of:** Miss Onchagwa holding brief for Mr. Nyachoti for the Applicant Mr. Ruigu holding brief for Mr. Kanyi Kiruchi for 2nd Respondent Mr. Melita - Court Assistant **…………………** **MOGENI J** **JUDGE**