https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4283

Achiando v Registrar of Lands Migori & another (Environment and Land Miscellaneous Application 009 of 2025) [2026] KEELC 4283 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4283 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Miscellaneous Application 009 of 2025 FO Nyagaka, J July 9, 2026 Between Wilson Okweh Achiando Applicant and The Registrar Of Lands Migori 1st Respondent The Commission Of Administrative Justice 2nd Respondent Ruling 1.Vide a Notice of Motion dated 24th July 2024, the Applicant sought this court’s intervention in removing a restriction placed on his land, being L.R. No. Kamagambo/ Kabuoro/6387. The said restriction was registered by the 1st Respondent on 8th August 2016 and the basis of the said registration was a complaint raised by the 2nd Respondent. The Applicant also prayed for the costs of the application. 2.The application is supported by the grounds contained thereon as well as the Affidavit deponed by Wilson Okweh Ochiando, the Applicant, who stated that he is the registered owner of the suit property, having been so registered and issued with a valid title on 26th May 2011. However, sometimes in November 2020, he conducted a search on his title and was shocked to learn that the 1st Respondent had placed a restriction on his title pursuant to a complaint by the second Respondent. Since then, the Applicant on numerous occasions unsuccessfully sought to have a copy of the green card from the 1st Respondent who only provided a copy of the said document on 22nd April 2024. The green card record shows that a restriction was placed on the title on 8th August 2016 and the same was informed by a complained by the Respondent that had reported suspected fraud. 3.The Applicant stated that his land is not public and that no fraud whatsoever has ever been associated with the said land. He also stated that the title in question has never been the subject of any legal proceedings and that placing the restriction on his title has not only hindered his use of the land but has also tarnished his name by suggesting that he could be a fraudster. 4.Further to the above, the Applicant stated that efforts to have the 1st Respondent remove the restriction have been futile and that no reasons have been given to justify the 1st Respondent’s inaction. He prayed for the removal of the restriction on his land and argued such a move would be in the interest of justice and fairness. 5.Annexed to the Supporting Affidavit deponed by the Applicant are the following documents: a copy of the title deed for land parcel registration number Kamagambo/Kabuoro/6387; copy of official search dated 23rd November 2020; copy of demand letter dated 24th may 2021; copy of letter dated 28th October 2021; a copy of a letter addressed to the 1st Applicant dated 7th March 2022; payment receipt for the issue of a green card dated; copy of green card dated 2nd April 2024 and a copy of official search dated 18th July 2024. Response to the Application 6.The 1st Respondent did not file a response to the application. 7.The 2nd Respondent, through its Secretary/CEO, Daniel Mwangi Karomo stated that it neither had the details of the restriction placed on the Applicant’s land nor did it have the letter that formed the basis for the registration of the restriction by the 1st Respondent. Mr. Mwangi deponed that, once the 2nd Respondent became aware of the application, it took several steps aimed at securing the documents that formed the basis of the restriction but none of those actions ever bore fruit. He deponed that the 2nd Respondent was unable to get the aforesaid letter from the 1st Respondent. On 25th April 2025, the 1st Respondent escalated the matter to the Principal Secretary, State Department for Lands Public Works, Housing and Urban Development requesting for facilitation to get the documents that informed the placing of the restriction by the 1st Respondent. After failing to receive a response from the said Principal Secretary, the 2nd Respondent sent a reminder to the same Principal Secretary seeking help to get the documents in question. On 9th September 2025, the 2nd Respondent summoned the Principal Secretary over the same documents. He did not heed the summons. 8.Lastly the 2nd Respondent stated that it is important to establish the basis upon which the restriction was placed and called upon the 1st Respondent to avail the latter that formed the basis of placing the restriction for purposes of ensuing transparency and accountability. The Applicant’s Further Affidavit 9.The Applicant filed a further affidavit sworn 16th March 2026. He deponed that there was no basis for the placing of the restriction over his land, considering that neither the 1st Respondent nor the 2nd Respondent could demonstrate any factual legal basis for the restriction. He also stated that he had made several inquiries to the 2nd Respondent concerning the basis of restriction and never got any response to the said inquires. This silence, according to the Applicant meant that there was no legitimate basis to place a restriction over his land. 10.In addition to above mentioned, the Applicant stated that the 2nd Respondent does not have the legal mandate to issue or direct the registration of caveats, inhibition or restrictions over private land. He stated that he was never given notice over the registration of the restriction and that the was equally not accorded and opportunity to be heard. This, he asserted, was contrary to Section 76 of the Land Registration Act as well as Article 50 (1) of the Constitution of Kenya 2010. He added that there is no complaint, investigation or proceedings in existence so as the justify the restriction over his land. 11.The Applicant further deponed that nine (9) years have since lapsed since the restriction was placed over his land without any legal or factual basis. Such a restriction, the Applicant asserted, goes against the provisions of The Land Registration Act on restrictions and that the same is baseless and legally untenable. He prayed that this court removes the restriction by exercising the powers granted to it by Section 78 (2) of the Land Registration Act. Issues, Analysis and Determination 12.After analyzing the application, the court has formed the opinion that the issues for determination herein are as follows: whether the restriction placed on L.R No. Kamagambo/Kabuoro/6387 by the 1st Respondent on 8th August 2016 should be removed; and, who should bear the costs of the application. 13.The Applicant adduced evidence that shows that he is the registered proprietor of land parcel registration number Kamagambo/Kabuoro/6387. He also produced evidence that shows that a restriction was placed over the said land by the 1st Respondent after the 2nd Respondent raised a complaint relating to fraud over the suit property. The details of the alleged fraud remain scanty since the 1st Respondent did not Respondent to the application and the 2nd Respondent denied having knowledge of the said details. The Applicant also asserted that there is no justification for placing a restriction over his land considering that there is no ownership or other dispute over his land and argued the 2nd Respondent’s averment that it did not have the details of the alleged fraud or the latter that forms the basis of the restriction confirms that the restriction is not founded on any legal or factual grounds and the same is baseless and legally untenable. He maintained that 1st Respondent, despite numerous requests by the Applicant has refused and /or ignored to remove the restriction and has not given any reasons for its inaction. 14.The Land Registrar is empowered by the law to place restriction over land. Section 76 of the Land Registration Act provides as follows:Restrictions.76.(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. 15.The green card record produced by the Applicant shows that the 1st Respondent placed a restriction over the suit property on 8th August 2016 over suspicion of fraud and based on a complaint made by the 2nd Respondent. There is no specified timeline or specified event after which the restriction should lapse. 16.Whereas the Land Registrar is empowered to place restrictions over land pursuant to Section 76 of the Land Registration Act, the said section does not envisage a restriction subsisting indefinitely. The Section does not also envisage a situation where a restriction is placed without a reasonable cause since doing so amounts to a violation of the registered proprietor’s constitutional right to property. In Cheplaiti v Land Registrar & another (Environment and Land Miscellaneous Application E044 of 2025) [2026] KEELC 906 (KLR) (19 February 2026) (Ruling)where the court determined that:“30.The Applicant has urged this court to order the removal of the restriction registered on 19.03.2018, which has been in existence for a period of over 7 years without any justifiable cause or reasonable explanation.31.Although I acknowledge the statutory duties of the Land Registrar (1st Respondent) and which includes the registration of restrictions, this court is also cognizance of the constitutional right to own and use property and the duty not to arbitrary deprive one’s right without any lawful excuse and justifiable cause.32.It is the Respondents’ claim that the purpose of the restriction has not ceased to exist and further that there is no evidence of an agreement reached as indicated in the restriction. However, there is no material before this court to support the said averments. This court cannot ascertain the existence of the said dispute on ownership. It is also not clear who are the parties to the said dispute and the steps that have been taken over the years in solving the alleged ownership dispute.33.Further, from the Certificate of Search annexed herein, it is evident that the Restriction was lodged on the application of the 2nd Respondent vide his letter. However, the said letter was never adduced to enable this court clearly ascertain the reason why the restriction was placed and whether the same falls within the provisions of section 76(1) of the Land Registration Act. It is not enough for the Respondents to merely state that the purpose of the restriction has not ceased to exist without providing sufficient material evidence in support of the said averments.35.Therefore, in the absence of any evidence to support the claims on the existence of an ownership dispute, this court finds no justifiable reason and legal explanation for the restriction to remain in force on the title of the suit property. A restriction cannot be in existence indefinitely.36.Justice E. K. Wabwoto J in the case of Sammy Ng'ang'a Ngatiri v George Ngatiri Mbugua & 2 Others [2021] eKLR held that a caution should only serve as a temporary measure and should not be used to limit or deprive the Applicant of his right to property indefinitely.’’ 17.In David Macharia Kinyuru v District Land Registrar, Naivasha & anor, (Nakuru) ELC Miscellaneous Application No. 332 of 2016, the court held as follows“4.It will be noted from the above, 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 a restriction by itself does not solve a dispute.5.In our instance, I have seen that the Applicant became the owner of the suit land on 25 March 2014. The restriction was placed on 22 July 2014. It states as follows: - " No dealings until the issue of ownership is determined."6.An issue of ownership of land is a matter that is squarely determined by the courts. In the event that a person is of the view that he is entitled to certain land it is his duty to approach the courts for relief. If a Land Registrar has to place a restriction because the ownership of land is in issue, then it is advisable that such restriction be limited in time, to allow a reasonable period for the person claiming the land to lodge his case in court. If such Applicant does not present his case for determination, then the restriction ought to be lifted.7.In our case, there was no time given for the restriction to subsist, save that the Land Registrar noted that the restriction should remain in place until an alleged ownership dispute is resolved. I have not been informed that any proceedings have been filed by the 2nd Respondent claiming the suit property since the year 2014 when the restriction was registered. It is now close to 3 years since the said restriction was lodged and no suit over ownership of the land has been lodged. It is apparent therefore that the rights of the Applicant as proprietor are being curtailed on an alleged interest which remains unknown and undetermined to date. If indeed the 2nd Respondent, who instigated the registration of the restriction was serious, he would by this time have presented his case in court and given reasons why he feels entitled to ownership of the suit land. None has been filed and, on my part, I do not see why the Applicant should be unduly restricted.’’ 18.Section 77 (1) of the Land Registration Act provides that The Land Registrar shall notify the registered proprietor of land before a restriction is registered. The Applicant stated that he was never served with such a notice. He learnt of the restriction when he conducted a search. He also stated that he was never accorded a hearing before the restriction was registered against his title. In Jane Wanjiru Nyota & 2 other Land Registrar Kajiado [2020] KEELC 3596, the court removed a restriction that had been registered because the land owners were never notified of the said restriction before it was placed. The court held that:“In relying on the facts as presented including the two cited judicial authorities, I find that failure by the Respondents to accord the Applicants a hearing before registering the restriction on their land as well as failing to remove the said restriction when demanded by the Applicants is against the rules of Natural Justice and violated the Applicant’s Constitutional right not to be condemned unheard. To my mind, I find that by failing to notify the ex parte Applicants of his intention to register a restriction over his land, the 1st Respondent did not observe the Constitutional principles of reasonability and procedural fairness. I opine that since the Respondents did not controvert the averments in the supporting herein, it amounts to an admission on their part that they unlawfully entered the restrictions against the suit lands and this hence amounts to ‘procedural impropriety’ as the basic rules of natural justice as well as procedural fairness were not been observed in the said process herein. From a reading of the legal provisions cited above, restriction can only subsist over a period of time and not indefinitely. Since at this juncture, there was no reason given for the subsistence of the restriction on the suit land, I do not see the need for retaining it over the suit land.’’ 19.Section 78 of the Land Registration Act grants this court the power to remove or vary restrictions. The same is couched in the following terms:“78.Removal and variation of restrictions(1)The Registrar may, at any time 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.’’ 20.In the instant matter, the party that raised a complaint over the Applicant’s land stated that it has no knowledge of the basis or reasons for the complaint hence the restriction. The Applicant was neither notified nor heard prior to registration of the restriction. Granted these circumstances, the court finds that there is no justification for the indefinite subsistence of the restriction placed on the Applicant’s title. 21.The upshot of the foregoing is that the application dated 24th July 2024 is merited. It is hereby allowed. Thus, this court hereby issues the following orders:a.An order is hereby issued that the restriction registered on 8th August 2016 on all that parcel of land known as L.R. No. Kamagambo/Kabuoro/6387 by the 1st Respondent be removed forthwith.b.An order directing the national government Land Registrar, Migori County to rectify the register accordingly.c.There shall be no order as to costs. 22.Orders accordingly RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 9TH JULY 2026.HON. DR. IUR NYAGAKAJUDGEIn the presence of,Ms. Oduo for the ApplicantMs. Opiyo for the Respondent (absent)Ms. Musembi for the Respondent (absent)