[2018] KEELC 25 (KLR)
The court found that the respondent had not opposed the application and had failed to provide any legal justification for the restriction placed on the applicant’s land. The applicant demonstrated that the purported Land Control Board consent was either forged or invalid, as the alleged transferee was already...
Source-derived case information.
- Citation
- [2018] KEELC 25 (KLR)
- Parties
- Applicant: Robert M’Mugambi Joshua; Respondent: The District Land Registrar Meru South
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 05 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Land Restrictions, Land Control Board Consents, Registration of Land, Proprietorship Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert M’Mugambi Joshua
Applicant
The District Land Registrar Meru South
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the restriction registered by the respondent on the applicant’s land parcel LR. MWIMBI/KIRARO/2000 was lawful.
- 2 Whether the Land Control Board consent referenced LCR NO. 68/9/2014 provided a valid legal basis for the restriction.
- 3 Whether the applicant is entitled to an order lifting the restriction on his land.
Ratio Decidendi
The court found that the respondent had not opposed the application and had failed to provide any legal justification for the restriction placed on the applicant’s land. The applicant demonstrated that the purported Land Control Board consent was either forged or invalid, as the alleged transferee was already deceased at the time of the restriction and any genuine consent should have been registered during his lifetime. The court held that the restriction was not supported by law or fact and that the applicant, as the registered proprietor, was entitled to have the restriction lifted. The absence of opposition and the uncontroverted affidavit evidence led the court to allow the...
Court Disposition
application allowed
Orders
- The respondent is directed to lift all the restrictions registered on the applicant’s LR. MWIMBI/KIRARO/2000.
- No costs are awarded.
Full Case Text
Judgment text and source record
41 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC MISCELLANEOUS APPLICATION CASE NO. 05 OF 2017
FORMERLY MERU ELC. 91 OF 2016
FORMERLY CHUKA MISC CIVIL APPLICATION NO. 08 O F2016
ROBERT M’MUGAMBI JOSHUA………………………..………APPLICANT
VERSUS
THE DISTRICT LAND REGISTRAR MERU SOUTH..............RESPONDENT
RULING
1. This application has been brought to court by way of Notice of Motion dated 15. 9.2016 and seeks the following orders:
1. That the Respondent be directed to lift all the restrictions registered on the applicant’s LR. MWIMBI/KIRARO/2000.
2. That the cost of the application be provided for.
2. The application has the following grounds:
a) That on 26th August, 2016, the Respondent maliciously registered a restriction on the applicant’s LR. MWIMBI/KIRARO/2000 and on the strength of the unexecuted Land Control Board Consents referenced LCR NO. 68/2014 and in favour of a transferee and who is now deceased.
b) That the applicant did not attend the Land Control Board in respect of LCR No. 68/9/2014 and the purported consent issued to the deceased transferee (if any) are (sic) all forgeries.
c) That the intended beneficiary of LCR NO. 68/9/2014 died on 21st August, 2016 and (sic) buried on 31st August, 2016 and therefore the purported consent issued vide LCR No. 68/9/2014 and not registered during the deceased lifetime has no legal basis.
d) That if the purported consent issued to the deceased transferee in the year 2014 (if any) was genuine, (and which is denied), the deceased transferee could have facilitated the same to be registered in the Lands Office during his lifetime.
e) That the Respondent has no legal basis to place a restriction on the applicant’s LR. MWIMBI/KIRARO/2000.
f) That unless the orders sought are granted, the applicant stands to suffer irreparable loss and damage.
3. The application is supported by the affidavit sworn by Robert M’Mugambi Joshua which states:
I, ROBERT M’MUGAMBI JOSHUA of Post Office Box 10 Chogoria and in the Republic of Kenya, make oath and state as follows:-
1. That I am the applicant herein, hence competent to make and swear this affidavit.
2. That I am the registered proprietor of LR. MWIMBI/KIRARO/2000 as evidenced on the Title Deed issued to me by the Respondent on 16th June, 2014. (Annexed find a copy of the said Title Deed and marked “RMMJ 1”).
3. That M’Mutiga Kaimaciu (now deceased) duly transferred LR. MWIMBI/KIRARO/2000 to me and during his lifetime. (Annexed find a copy of the register (green card) and marked “RMMJ2”)
4. That one M’Mutiga Kaimaciu and who transferred LR. MWIMBI/KIRARO/2000 to me died on 21st August, 2016 and was buried on 31st August, 2016. (Annexed find a copy of his eulogy and marked “RMMJ3”).
5. That on 26th August, 2016, the Respondent maliciously and without any legal justification placed a restriction on my land and on the strength of the alleged Land Control Board consents (sic) referenced LCR NO.68/9. /2014. (Annexed find a copy of the search certificate and marked “RMMJ 4”)
6. That I did not attend any Land Control Board on 25th September, 2014 for transferring back my LR. MWIMBI/KIRARO/2000 to M’MUTIGA KAIMACIU and the purported consents (sic) (if any) are all forgeries and further if the said consent is genuine (and which is denied), the same could have been registered by the deceased himself during his lifetime.
7. That the actions of the Respondent to restrict my land are not within the law and the same ought to be lifted forthwith.
8. That the respondent has no legal basis to restrict my land and the same deserves to be lifted forthwith.
9. That unless the orders sought are granted, the applicant stands to suffer irreparable loss and damage.
10. That the contents of my affidavit are true to the best of my knowledge, believe and information.
4. As far as this court is concerned, this application is unopposed.
5. On 14. 11. 2017, Mr. Kiongo, litigation counsel in the AG’s office, told the court that there was a possibility of the matter being resolved amicably and asked the court to grant him 30 days after which a consent would be presented to court for adoption so that the matter could be marked as settled.
6. Nevertheless, Mr. Kiongo has since then never come back to court.
7. In the circumstances, this application, which is unopposed, is allowed.
8. No costs are awarded.
Delivered in open court at Chuka this 14th day of March, 2018 in the presence of:
CA: Ndegwa
Njeru Ithiga for the Applicant
P.M. NJOROGE
JUDGE