In his capacity as the Administrator of the estate of ENOCK LUVULIKHA alias ENOCK LUVUKHA, deceased, Josiah Ikatwa, the applicant herein sued the Land Registrar- Vihiga County vide the Originating Summons dated 30th April, 2024. The Applicant who claims that the estate of the deceased is the proprietor of Land Parcel No. KAKAMEGA/SHIRU/647 sought for orders that: -
- the Respondent be ordered to remove the restriction placed on the 15th August 2011 on the suit property land parcel No KAKAMEGA/SHIRU/647 situated at Shiru sub location, Hamisi sub –County, Vihiga County.
- the Respondent be ordered to transfer the title for Land parcel KAKAMEGA/SHIRU/647 to the applicant.
- costs of the application be provided for.
The grounds upon which the application was brought were that the Respondent placed a restriction on the suit parcel of land on 15th August 2011 for purposes of compulsory acquisition which makes the process of transmission of the suit land impossible. That the purpose of the restriction is unconstitutional and repugnant to justice.
The Originating Summons was supported by the averments contained in the Supporting affidavit of Josiah Ikatwa, the applicant, sworn on 30th April, 2024. The applicant deposed that he was a son and beneficiary of the Estate of ENOCK LUVULIKHA alias ENOCK LUVUKHA, deceased, who passed away on the 7th December 2001. That he had undertaken succession to the estate of the deceased and obtained Grant of Letters of Administration and Certificate of Confirmation of Grant.
That the deceased was the proprietor of the suit land herein. That the suit property was transferred to him (applicant) by action of law on 3rd July 2023.
That the suit property has a restriction registered against it for purposes of compulsory acquisition by the Government of Kenya. That the restriction is dated 15th August 2011. That the compulsory acquisition was never undertaken. That it is now 13 years since the compulsory acquisition was scheduled and the restriction placed on the title. That no compulsory acquisition is planned. That the National Land Commission which bears the authority and task of undertaking and supervising such activities has made no further statement on the compulsory acquisition. That the Land Registrar has remained adamant and chosen not to remove the restriction. That the Land Registrar’s decision is an encumbrance against his (applicant’s) right to property thus unconstitutional and unfair.
In response to the Originating Summons, the Land Registrar, Vihiga County filed a Replying Affidavit sworn on 28th May 2024. The Land Registrar deposed that a restriction pending finalization of compulsory acquisition by the Government was placed on the register in respect of the suit land on 15/8/2011. That on 3/7/2023 a set of transmission documents for the estate of the deceased were presented to the registry for registration but that the same could not be registered because of the pending restriction. That the suit parcel of land was acquired by the Government for purposes of putting up a school.
That the land was subsequently allocated the Musunji Primary School. That the school management committee of Musunji Primary school resolved to accommodate Shiru Youth Polytechnic on the suit parcel of land. That at the moment, the suit land hosts Musunji Primary school as well as Shiru Vocational Training Centre.
That the original owners of the suit land were relocated to SHIRU/SHAVIRINGA SETTLEMENT SCHEME. That the present application has therefore been instituted in bad faith and is a waste of judicial time.
The applicant filed a Supplementary Affidavit sworn by himself on 1st October 2024 in response to the Respondent’s Replying Affidavit. The applicant averred that the Respondent had not provided evidence of compulsory acquisition and subsequent allocation of land to the applicant. That the Affidavit of Helen Ojwang offends the provision of Order 19 Rule 7 of the Civil Procedure Rules. The applicant prayed that the Replying Affidavit be struck out.
On 10th June 2024, the court gave directions at the instance of the applicant that the Originating Summons be disposed of by way of Affidavit evidence and submissions. Because the directions were given in the absence of the Respondent, the court directed that the directions be extracted and served upon the Respondent. Affidavit of Service sworn by James Asudi on 5th August 2024 shows that the Respondent was served with the extracted directions on 13th June 2024. A copy of the directions dated 10/6/2024 attached to the Affidavit of Service bears a stamp of the County Land Registrar, Vihiga showing that the Respondent received a copy thereof on 13/6/2024.
It was submitted on behalf of the applicant vide the written submissions filed by the firm of Maosa & Co Advocates dated 6th November 2024 that any purported compulsory acquisition of land falling short of the procedure provided for in law is fraudulent and an abuse of the administration on the part of the Land Registrar.
That the purported compulsory acquisition was devoid of any gazette Notice and /or any document ratifying the alleged acquisition. Counsel urged the court to give the applicant the liberty to enjoy possession of the suit land by ordering immediate removal of the restriction which has neither constitutional and/or legislative justification.
In spite of being served with the court directions as indicated herein above, the Respondent filed no submissions.
Determination
The first relief sought by the applicant is for removal of the restriction placed on the suit land.
It is admitted that there is a restriction placed on the suit land. The copy of register (green card) annexed to the application also confirms this. It shows that on 15/8/2011 a restriction was placed on the register of the suit land whose term were that;
“No dealing on the title until the matter of compulsory acquisition by the government of Kenya is finalized.”
And from the wordings of the restriction, the process of compulsory acquisition was yet to be finalized.
A restriction is a temporary measure placed on the register to land to secure certain right/interests pending some action. Section 76 of the Land Registration Act allows the Land Registrar either with or without the application of any person interested in the land, lease or charge make an order referred to as a restriction prohibiting or restricting dealings with any particular land, lease or charge. The restriction is made for purposes of compulsory acquisition of the land, prevention of any fraud or improper dealing or for any other sufficient cause. Section 76 (2) provides that;
“the restriction may be expressed to endure
- for a particular period
- until the occurrence of a particular event, or
- until 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.”
In the present case, the restriction was to secure the land pending finalization of the compulsory acquisition of the land by the government.
Section 78 of the Act provides for removal and variation of restrictions that: -
“78(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 the removal or variation of the restriction.
(2) Upon the application of a proprietor affected by the 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.”
Though the Land Registrar averred that the land was compulsorily acquired and the owners allocated alternative land, no evidence or particulars thereof were exhibited. The particulars of the alternative land were not disclosed. The applicant denied that the process of compulsory acquisition was ever undertaken by the government. The burden of proof was with the Land Registrar to proof that indeed the process was completed and that the applicant or owner of the suit land compensated by way of allocation of alternative land as claimed in the Replying Affidavit. And if indeed the compulsory acquisition was undertaken and finalized, there is no explanation as to why the restriction is still subsisting on the register.
The applicant is currently the holder of Letters of Administration in respect of the estate of the registered owner of the suit land hence entitled to registration of the land in his name either as administrator of the estate of the deceased or beneficial owner thereof. The prevailing state of affairs is in contravention of the right to own land contained in the provisions of article 40 of the Constitution and the protection provided to land owners by law specifically sections 24, 25 and 26 of the Land Registration Act.
The Respondent averred that on the land are a Primary School and a Vocational Polytechnic which are in operation. It is not clear how the deceased and/or the applicant allowed the developments to take place on the land.
I find that the applicant has proved its case for removal of the restriction on a balance of probabilities.
Removal of the restriction and registration of the suit land in the name of the will make the land accessible to the state of the deceased for distribution according to the Letters of Administration held by the applicant. This will no doubt disrupt the running of the public institutions currently in operation on the suit land. For this reason and for the interest of justice the court will give the Respondent, the government and the Institutions on the suit land time to redeem their position.
The upshot is that the application commenced vide the Originating Summons dated 30th April 2024 is hereby allowed and the following orders made:
- The Respondent and the Government to complete the process of acquisition of land parcel NO. KAKAMEGA/SHIRU/647 within twenty four(24) months of service of this order, in accordance the laid down procedure of compulsory land acquisition by government.
- In default of the Respondent and the government to complete the compulsory acquisition within the period provided in (i) above, the restriction on the land be removed by the Respondent and the land be registered in the name of the applicant in accordance with the Letters of Administration the applicant holds.
- This order be served upon the Land Registrar, Vihiga County, the Attorney General, the Board of Management Musunji Primary School and the Management Committee of Shiru Youth Polytechnic within 7 days of its extraction.
- Costs to the applicant.
Orders accordingly.
Judgement dated and signed at Vihiga and delivered this 13th day of February, 2025 virtually through Microsoft Teams Online Application.
E. ASATI,
JUDGE.
In the presence of:
Ajevi: Court Assistant.
Chitwah h/b for Maosa for the applicant.
No appearance for the Respondent.