https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4256

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ELDORET** **ELC CASE NO. 111 OF 2019** **SOSIANI BUILDERS LIMITED ……...................... PLAINTIFF** **-VERSUS-** **THE CHIEF LAND REGISTRAR ………..............… 1ST DEFENDANT** **THE COUNTY LAND REGISTRAR** **UASIN GISHU COUNTY ………..........................… 2ND DEFENDANT** **DIRECTOR OF CRIMINAL INVESTIGATIONS …… 3RD DEFENDANT** **THE ATTORNEY GENERAL ………...................… 4TH DEFENDANT** **CHARTER HOUSE INVESTMENT LTD .............… 5TH DEFENDANT** **JUDGMENT:** 1. The Plaintiff filed the present suit vide a Plaint dated on 27th September, 2019, against the Defendants, seeking the following Orders:- 2. **A declaratory order declaring that the restriction imposed on the parcel ELDORET MUNICIPALITY BLOCK 12/144 is oppressive, unjustified and unlawful.** 3. **An order directing the County Land Registrar, Uasin Gishu County to remove the restriction imposed on 5th June 2012 over the said parcel.** 4. **An order of permanent injunction as per paragraph 13.** 5. **General damages occasioned by the restriction.** 6. **Costs of this suit and the interest at the court’s rates.** 7. **Any other relief that this honourable court may deem fit to grant.** **Plaintiff’s Case;** 1. The plaintiff avers that it is the registered owner and/or proprietor of the parcel of land known as ELDORET MUNICIPALITY BLOCK 12/144 **(*hereinafter referred to as the suit land*),** having acquired the same pursuant to a sale. That the suit land was subsequently transferred and registered in the name of the plaintiff and a Certificate of Lease issued on 03.11.2011 to that effect. 2. It is the plaintiff’s claim that on 5th June, 2012, an illegal restriction was registered against the title of the suit land by the 2nd defendant on instructions from the 3rd defendant. It is further averred that the same was done by the 3rd defendant on the grounds of an alleged investigation involving the suit land. Subsequently, charges were preferred against 3 suspects and vide a ruling delivered on 06.09.2018, the said suspects were acquitted. 3. The plaintiff further pleads that despite severally demanding that the restriction against the title of the suit land be removed or that a hearing date regarding the same be given, the 2nd defendant has failed and refused to do so thereby unfairly and unlawfully denying the plaintiff an opportunity to carry out its activities and enjoy the use of his legally acquired property. The plaintiff outlined the particulars of illegality on the part of the defendants. 4. Subsequently, the plaintiff avers that as a result of the illegal restriction against the title of the suit land; his rights over the suit land have been unlawfully interfered with and the plaintiff continues to suffer irreparable loss and damage. They outlined the particulars of loss occasioned to the plaintiff. It was further pleaded that the plaintiff did obtain a loan facility of Kshs. 30,000,000/= from Prime Bank Limited on 07.02.2012 and used the suit land as security. 5. In conclusion, the plaintiff urged the court to allow its claim against the defendants and to grant the reliefs as sought in the plaint. **Defendants’ Case** 1. The summons and pleadings herein were duly served upon all the defendants. However, the 1st – 4th defendants neither filed a statement of defence nor participated in the present suit. 2. The plaintiff’s suit was therefore only opposed by the 5th defendant vide the Statement of Defence dated 16.10.2023 in response to the averments made in the plaint. 3. The 5th defendant vehemently denied the ownership claims made by the plaintiff in paragraphs 6 and 7 of the plaint. In further response thereto, they did further plead that the 5th defendant is the rightful and absolute proprietor of all that parcel of land known as Eldoret Municipality Block 12/424. 4. The 5th defendant thus gave the following narration on the acquisition and subsequent registration of the land in its name:- 5. That on 22.05.1989, Hon. Mark Kiptarbei Too (now deceased), who was a director of the 5th defendant was allotted the suit land herein. 6. The requisite fees were paid to the government of Kenya and a Certificate of Lease thereafter issued in respect to a parcel of land referenced as ELDORET MUNICIPALITY BLOCK 12/424. 7. They explained that the parcel referenced as ELDORET MUNICIPALITY BLOCK 12/424, was an amalgamation of 3 plots to wit Eldoret Municipality Block 12/143, 218 and 144 (the suit land herein). 8. It is their claim that despite the amalgamation and allocation of plot No. 12/424 to the 5th defendant; the Commissioner of Lands erroneously allotted the suit land to John K.K. Songok and Clementina Chebet Songok. 9. That upon discovery of the erroneous allocation of the suit land, vide a letter dated 05.02.1998, the Commissioner of Lands withdrew the offer as contained in the letter of allotment. 10. John K.K. Songok by a letter dated 01.07.1998 acknowledged the said erroneous allocation and the withdrawal of the offer and even sought an alternative site. 11. By its letter dated 26.02.1999, the Commissioner of Lands acknowledged that the suit land does not exist and that the same is part of the parcel no. 12/424. 12. That upon amalgamation of the 3 plots to form plot No. 12/424, the Registry Index Map was amended accordingly and the Certificate of Lease thereto issued in the name of the 5th defendant. 13. In view of the foregoing, the 5th defendant maintained that it holds the legitimate and valid title to the parcel of land, which was acquired lawfully and in compliance with the due process of law. 14. In response to the contents of paragraph 9 of the plaint, the 5th defendant stated that the restriction was just, legal and lawful and the same was lodged against all the parcels that were amalgamated into plot No. 424. 15. In response to the claims made in paragraph 11 of the plaint, it was the 5th defendant’s contention that it is in the interest of justice that the restriction remains in place. That since the suit land does not exist, all claims touching on the suit land are a product of fraud and illegalities. Further, that if the same is removed, there is a high likelihood that the plaintiff may interfere with the parcel of land, which other than the instant suit, is a subject in other suits; Eldoret ELC Suit No. 927 of 2012, Eldoret ELC Case No. 304 of 2014 and Eldoret ELC Case No. 225 of 2016. 16. The 5th defendant further denied the particulars of illegality and the particulars of loss as outlined in the plaint. They maintained that restrictions are lodged to prevent any fraud or improper dealing in a land or for any other sufficient cause. 17. With regard to the reliefs sought in the plaint, the 5th defendant did aver that the same cannot be granted in respect to a land that does not exist and the plaintiff holds no legal rights thereto. 18. In conclusion, the 5th defendant urged the court to dismiss the plaintiff’s suit against it with costs. 19. The 5th defendant’s statement of defence was duly served upon the plaintiff and a Reply to the 5th Defendant’s Defence dated 27.02.2024 was filed to that effect. 20. In the reply to the defence, the plaintiff denied each allegation contained in paragraphs 3,4,5,6,7,8,9,10,11,12,13,14,15,16 and 17 of the 5th defendant’s statement of defence and invited the 5th defendant to strict proof thereof. 21. In further response to the contents of paragraph 3 and 4 of the defence, the plaintiff did aver that its suit seeks the removal of the restriction placed on the suit land and is not a claim of ownership. 22. The plaintiff however did reiterate it acquired the suit land legally and complied with the due process of law in the transfer and subsequent registration of the suit land in its name. That a search at the lands registry showed that the title of the suit land was clean. 23. In response to paragraph 6 in the defence, the plaintiff reiterated that restriction lodged on the suit land was done unlawfully, unjustly and irregularly. Further, that the same was lodged without granting the plaintiff an opportunity to be heard. **Trial** 1. The Plaintiff’s case proceeded for hearing on 28.02.2024. The director of the plaintiff company, Mahendra G. Patel testified as PW1. He adopted his witness statement dated 27.09.2019 as his evidence in chief. 2. He also produced the documents in his list of documents as Pexhibits 1 – 6 respectively in further support of his case as follows: - Pexh. 1 – copy of certificate of lease in respect to the suit land Pexh. 2 – Certificate of Official Search dated 07.02.2012 Pexh. 3 – Notice of Intention to sue Pexh. 4 – Copy of the letter dated 6/3/2017 Pexh. 5 – Ruling in the Criminal Case No. 1821 of 2012 Pexh. 6 – Director’s Resolution 1. It was also his testimony that he acquired the suit land by way of sale and the same was subsequently transferred and registered in the name of the plaintiff. 2. He explained that the plaintiff’s suit against the defendants is for the removal of the restriction lodged against the title of the suit property. It is his testimony that he wrote to the Land Registrar, to inquire why the restriction was lodged in their title but he received no response and the restriction has never been removed to date. 3. It is further his contention that he is unable to carry out any developments on the property as a result of the said restriction. He however stated that prior to the restriction being lodged, he had secured a financial facility from Prime Bank and the title of the suit land was used as security whereupon a Charge was registered in favor of the Bank, which is yet to be discharged. 4. On cross-examination, he reiterated that he did not have any claim against the 5th defendant. When referred to the 5th defendant’s bundle of documents at page 19, he confirmed that the same was a letter of allotment dated 22.05.1989 in favor Mark Too. 5. When referred to the document at page 21, he conceded that he could not see plot no. 144 on the particular map. He further admitted that the document at page 24 of the list of documents was a lease document in respect to parcel of land known as Eldoret Municipality Block 12/424 in the name of the 5th defendant issued on 18/5/1999. 6. He further explained that in the plaintiff’s letter dated 1/3/2017, he was asking the land registrar to remove the restriction which had been placed by the DCI and in the letter dated 6/3/2017, the same is from the land registrar to the DCI inquiring whether investigations in the matter had been finalized. 7. It was his claim that he was not aware that there was an ownership claim over the suit land. When referred to the criminal case No. 1821 of 2013 and produced as pexh. 5, he maintained that the accused therein were all acquitted. 8. On re-examination, he was referred to page 19 of the 5th defendant’s bundle of documents and it was his testimony that the letter of allotment was in respect to an unsurveyed plot in Eldoret Municipality. That on the survey plan attached to the allotment letter was in respect to parcel nos. 143 and which covered plots 158, 159 and 160. 9. Further, when referred to page 24, he confirmed that the lease was issued in the name of the 5th defendant whereas the allotment letter was in the name of Mark Too. With regard to the documents in pages 49 – 54 of the bundle, he stated that from a look at the same, the injunction given by the court was in respect to Eldoret Municipality Block 12/462, 463, 464, 465 and 466 and were never directed to the suit land herein. In addition, he confirmed that the transfer contained in page 28 was in relation to parcel no. 153 pursuant to an allotment dated 16/10/1985. 10. After re-examination, the plaintiff closed its case. 11. The defence case proceeded for hearing on 02.05.2024. Sophia Chemengen Too, a Director and Shareholder of the 5th defendant testified as DW1. She adopted her witness statement dated 16.10.2023 as her evidence in chief. 12. She also produced the documents in her bundle of documents as defence exhibits 1 – 23. 13. It was further her testimony that the 5th defendant was joined to the present suit, when it came to their attention that there was an attempt to remove the caveat which they had lodged against the suit land. It was Dw1’s contention that the caveat should not be removed for the reason that the 5th defendant is the owner of the suit land herein. 14. On cross-examination, she confirmed that the restriction had been lodged as a result of a letter from the DCI. She denied knowledge of any investigation conducted pertaining the suit land. Although she acknowledged the existence of a criminal case against certain individuals, she stated that she did not know whether the same had been concluded or not 15. She did also confirm that the dispute before court was on a restriction and stated that there was another case before court touching on ownership. 16. On re-examination, she stated that the criminal case ended prematurely, for failure of witnesses to attend court. She further clarified that there were other cases touching on the issue of ownership, which were however consolidated. In conclusion, she reiterated that the restriction should remain in place until the ownership dispute is completed. 17. Sergeant Samuel Kamau No. 67708, attached at DCI Headquarters Lands Fraud Investigation Unit testified as DW2. 18. He referred to the Investigation Report dated 22.06.2013 and stated that Ms. Sophia Too visited their office and complained that there were suspects who were trying to interfere with their parcel of land known as Eldoret Municipality Block 12/424, which had been allotted to the 5th defendant in 1989 and a certificate of lease issued thereto in 1999. 19. That pursuant to the information given by Ms. Sophia Too, they commenced their investigations and confirmed the said averments. That in the course of their investigations, they visited the various ministries and departments, where they discovered that majority of the documents had been interfered with. 20. That in the process of the investigations, they obtained a letter from the Commissioner of Land addressed to the persons who had been allocated the suit land erroneously. That the Commissioner of Lands in the said letter was advising them to look for alternative site as the land in question was not available for allocation. 21. That pursuant to the said investigations and findings, they arrested and charged the said suspects with various offences. He thereafter produced the said report as exhibit. 22. On cross-examination, he stated that he was among the Investigating Officers in the case and that the report was signed by his colleague Irene Wamboi. 23. He confirmed that the dispute before court was with regard to a restriction that they had lodged against the title of the suit land No. 144. He however stated that the said restriction had since been removed. 24. When referred to the pexh. 5, he confirmed that from the said ruling, all the accused persons had been acquitted. It was however his contention that even though the accused were acquitted in the criminal case, the decision of whether to retain or remove the restriction could only be made by the court. 25. Further, he conceded that from the letter of allotment, an unsurveyed land was given to Mark Too on 22/5/1989. In addition, he confirmed that the plan attached to the letter of allotment was in respect to plot nos. 158 and 12/143. He admitted that there was no mention of the suit land (No. 144) anywhere. 26. He was referred to his report and he confirmed that the allocation of parcel no. 12/144 was done on 30/5/1997 and that at the time, the alleged amalgamation had not been done. He did also concede that he was not aware that there was a letter of cancellation of parcel No. 12/424. 27. On re-examination, he admitted that he was not the one who signed the report but that the same was done by his colleague, corporal Irene Wamboi. 28. He did further testify that the restriction was placed by the registrar and not the DCI or upon the request by the DCI. It was however his contention that as long as there is a complaint and the land registrar is satisfied then the restriction should remain. 29. After the re-examination, the defence closed their case. 30. Upon close of the defence case, this court issued directions on the filing of the final submissions. However, on a perusal of the court record, I have only seen the plaintiff’s submissions and authorities dated 22.04.2024, which I have read and duly considered. **Analysis and Determination:** 1. I have carefully considered the pleadings filed herein, the respective testimonies and the exhibits adduced by the witnesses in support of their rival claims and the submissions in totality and it is my considered view that the following issues arise for determination: - 1. *Whether the plaintiff has sufficiently proved its claim to warrant the removal of the restriction lodged on 5th June, 2012.* 2. *Whether the plaintiff is entitled to the reliefs sought in the plaint.* 3. *Who should bear the costs of the present suit.* 2. **Whether the plaintiff has sufficiently proved its claim to warrant the removal of the restriction lodged on 5th June, 2012;** 3. At the center of the dispute herein is the issue touching on the restriction lodged against the title of the suit land on 05.06.2012. This first issue therefore seeks to ascertain whether the plaintiff has sufficiently proved its case on the removal of the said restriction or whether the same should be sustained/retained. 4. Sections 76, 77 and 78 of the Land Registration Act provide the statutory framework on restrictions. Section 76 outlines the reasons and limitations on the lodging of a restriction. The section provides as follows: - ***“(1) For the prevention of any fraud or improper dealing or for any other sufficient cause, the Registrar may, either with or without the application of any person interested in the land, lease or charge, and after directing such inquiries to be made and notices to be served and hearing such persons as the Registrar considers fit, make an order (hereinafter referred to as a restriction) prohibiting or restricting dealings with any particular land, lease or charge.*** ***(2) A restriction may be expressed to endure—*** ***(a) for a particular period;*** ***(b) until the occurrence of a particular event; or*** ***(c) until the making a further order is made,*** ***and may prohibit or restrict all dealings or only or the dealings that do not comply with specified conditions, and the restriction shall be registered in the appropriate register.*** ***(3) The Registrar shall make a restriction in any case where it appears that the power of the proprietor to deal with the land, lease or charge is restricted.”*** 1. Section 78 on the other hand provides for the removal and variation of restrictions and states as follows: - ***“(1) The Registrar may, at anytime 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 that the removal or variation of a 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.*** 1. Having outlined the statutory provisions, I will now proceed to analyse the rival claims made herein in determining whether the threshold outlined in Sections 76 and 78 of the Land Registration Act have been met to the satisfaction of this court. 2. It is the plaintiff’s claim that a restriction was lodged against the title of the suit land sometimes on 05.06.2012 by the 2nd defendant on request and/instruction from the 3rd defendant. That despite its efforts to inquire the reason for the said restriction and seek its removal from the 2nd defendant, no explanation has been tendered and the restriction has remained in place to date. 3. The 1st, 2nd, 3rd and 4th defendants were served with the pleadings herein, however, they neither filed a statement of defence nor participated in the proceedings herein, despite being the persons responsible and liable for the placing of the impugned restriction on 05.06.2012. 4. The 5th defendant on its part, was joined to the suit and they filed a statement of defence in response to the plaintiff’s averments. In a nutshell, the 5th defendant was in support of the said restriction and urged the court not to remove the same. DW1 in her testimony averred that the restriction should be sustained or retained pending the hearing and determination of the various suits filed touching on the ownership. 5. Before delving on whether the restriction placed on the title of the suit land should be removed, it is first important to ascertain whether the said restriction meets the criteria outlined in section 76. 6. Section 76(2) expressly provides the timelines and/or period within which a restriction should be sustained and/or endured on a parcel of land, that is, for a particular period which should be noted on the title, until the occurrence of a particular event and thirdly, until the making of a further order. 7. The question that therefore follows is whether the restriction lodged on 05/06/2012 satisfy the conditions outlined in section 76(2) of the Act, with respect to the timelines/period. 8. In the case of [***David Macharia Kinyuru Vs District Land Registrar, Naivasha & Another, Nakuru***](https://kenyalaw.org/akn/ke/judgment/keelc/2017/2474) **ELC Misc. Appl.No.331 of 2016**, the Court held that:- ***"…the purpose of a restriction is aimed essentially at stemming fraud or improper dealings over land. The Land Registrar may also place a restriction where there is other sufficient cause. Restrictions are to endure for a particular time or until the occurrence of an event, or the making of a further order. It is not the purpose of this section of the law to have restrictions remain indefinitely. The reasoning is that a restriction should only hold a property in abeyance as the underlying issue leading to the restriction is being resolved; since restriction by itself does not solve a dispute….”*** 1. Save for the fraudulent allegations made by the 3rd defendant to the 2nd defendant and which led to the lodging of the restriction on 05.06.2012, the particular period within which the restriction was to be endured is not stated. It is also not clear whether the same was to endure until the occurrence of a particular event, which has also not been specified or whether the same was to be sustained until the making of a further order. 2. In essence therefore, this court is unable to ascertain if the conditions for lodging the restriction have been resolved or any status thereof. It is however important to note that the fraudulent allegations made by the 3rd defendant and restated by DW2 in his testimony culminated to the arrest and charging of the suspected persons vide the proceedings known as Eldoret Criminal Case No. 1821 of 2012 and which resulted in the ruling produced as pexh. 5, whose effect was to acquit all the accused persons. 3. The 2nd defendant, despite being served with summons and pleadings herein, neither entered appearance nor filed a statement of defence in response to the allegations made in the plaint and to shed more light on its decision to have the restriction registered against the suit land and which has endured for over a decade. 4. Thus, in the absence of any reasonable explanation and sufficient explanation, this court finds no reason for sustaining/enduring the restriction and/or for the continuance of the restriction. Moreover, DW2, an Officer from the DCI Headquarters, during cross-examination did state that they had since removed the restriction. 5. Article 40 of the Constitution guarantees every person the right to acquire and own property and further prohibits an arbitrary deprivation of property or any interests appurtenant thereto. To allow the restriction to remain on the land indefinitely, without any plausible reason or sufficient explanation and justification would certainly in my view, constitute and sanction an unjustified interference with the plaintiff’s proprietary rights and interests accruing from its registration as the owner of the suit land. 6. Consequently, in the absence of any proof by the 2nd and 3rd defendants on why the restriction as lodged on 05.06.2012 should subsist/endured/not be removed, this court finds that the same should be removed as sought. 7. Thus, it is my considered view that the plaintiff has sufficiently demonstrated its claim to the required standard to warrant the removal of the restriction lodged on 05.06.2012 and endured for over a decade without sufficient explanation and justification. 8. **Whether the plaintiff is entitled to the reliefs sought in the plaint;** 9. The plaintiff sought declaratory orders that the restriction imposed against the suit land is oppressive, unjustified and unlawful. It also sought the removal of the said restriction, orders of permanent injunction as well as general damages and costs of the suit. 10. In view of the finding in issue (i) above, this court finds that the plaintiff having sufficiently proved its case, it is entitled to the reliefs as sought in the plaint, save for general damages which was not proved. Moreover, the plaintiff averred that it had utilised the title to secure a loan. 11. **Who should bear the costs of the present suit** 12. The general rule is that a successful party should be awarded costs of the suit unless the court, for good reason, directs otherwise. 13. In this case, having held that the plaintiff has proved its case against the defendants on a balance of probabilities, it therefore follows that the plaintiff is entitled to costs of the suit. **Disposition:** 1. The upshot of the foregoing is that the plaintiff has sufficiently proved its claim against the defendants on a balance of probabilities. Consequently, the Plaint dated 27th September, 2019 is **merited** and is hereby **allowed** on the following terms:- 2. **A Declaration be and is hereby made that the restriction imposed on the parcel of land ELDORET MUNICIPALITY BLOCK 12/144 is oppressive, unjustified and unlawful.** 3. **An order is hereby issued directing the County Land Registrar, Uasin Gishu County to remove the restriction imposed on 5th June 2012 over the parcel of land ELDORET MUNICIPALITY BLOCK 12/144** 4. **An order of permanent injunction is hereby issued as per paragraph 13 of the plaint.** 5. **Costs of this suit to be borne by the 5th Defendant.** 6. It is so ordered. **DATED**, **SIGNED** and **DELIVERED** at **ELDORET** on **9TH day** of **JULY, 2026.** **HON. C.K. YANO** **JUDGE** **In the virtual presence of; -** Mr. Songok for the Plaintiff Mr. Ogada holding brief for Prof. Ojienda, Sc for the 5th Defendant Court Assistant – Laban