This ruling determines the defendant’s Notice of Motion dated 22 July 2025, expressed to be brought under Article 40 of the Constitution of Kenya, 2010, sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21), sections 76 and 78(2) of the Land Registration Act, 2012 and Order 51 of the Civil Procedure Rules, 2010. It is supported by the affidavit of Claris Ogombo and by the grounds on its face.
2. The motion seeks four substantive orders which are that the Registrar of Titles, Mombasa, be joined as the 2nd interested party; that the court declare that there is no dispute on any of the terms of the consent dated 17 December 2019 and that the consent is clear, unambiguous and enforceable; that the restriction registered against the suit property, CR 1717, Land Reference Number 351 of Section 1 Mainland North, by the Senior Registrar of Titles vide her ruling dated 2 October 2023 be lifted and/or removed; and that the resulting orders be served on the Land Registrar for compliance.
3. The suit concerns CR 1717, Land Reference Number 351 of Section 1 Mainland North, which the 1st plaintiff charged to the defendant bank to secure financing advanced to the 2nd plaintiff. The suit was compromised by a consent dated 17 December 2019, which was adopted as an order of this court. Under that consent, in broad terms, the bank was to release the original title against undertakings, the property was to be subdivided, and replacement charges were to be registered over the resulting subdivisions to secure the balance then outstanding. The intended subdivision, however, stalled after the Senior Registrar of Titles, by a ruling dated 2 October 2023, registered a restriction against the title under section 76(1) of the Land Registration Act, 2012, pending the resolution of an alleged dispute over a sum of Kshs. 15,000,000/= said to form part of the consent monies. It is that restriction, and the alleged dispute underlying it, that the present motion seeks to resolve summarily.
4. Although the plaintiffs filed a replying affidavit to the application, they supported the defendant/applicant’s application; to be precise Mohamed Ali Heybe, who has introduced himself in the affidavit as “a director of the plaintiffs” has sworn as follows:
“8. That I make this affidavit in support of the defendant’s notice of motion for this Honourable Court to order the removal of the restriction by the land Registrar over the suit property Land Reference No. 351/1/MN CR. No. 1717, Bamburi, Mombasa County.”
5. The interested party has not filed any affidavit in response to the application. Thus, the application is effectively unopposed. And, of course, none of the parties to the consent could possibly oppose it if the restriction stands in the way of the execution of the consent. In placing the restriction on the property, the Senior Registrar of Titles ordered as follows:
“In light of the foregoing and in order to compromise the rights of the developer/interested party in as far as the Kshs. 15,000,000/- dispute is concerned, I will make the following orders:-
1. That the caution placed by the cautioners on 20th February, 2023 over parcel number 351/I/MN (CR. 1717) be and is hereby lifted and a restriction under section 76(1) of the Land Registration Act, 2012 be placed until the Kshs. 15, 000,000/- dispute is resolved and a consent agreement or court order to that effect is filed or produced for registration.”
Section 76 of the Land Registration Act which the Registrar invoked when placing the restriction reads as follows:
76. Restrictions
(1) For the purposes of compulsory acquisition 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.
According to the registrar, the restriction was informed by “the Kshs. 15,000,000/- dispute” and, therefore, of the several reasons given in section 76(1) of the Land Registration Act, for placement of a restriction, “other sufficient cause” appeals to me to be the only reason that led the Registrar to place a caveat on the 1st plaintiff’s property. By way of elimination, it could neither have been for compulsory acquisition nor for fraud or improper dealing because none of these things were alleged.
My concern with the registrar’s decision is that there is no evidence and neither is there any suggestion that the alleged dispute arose after the consent of the parties that had been subsequently adopted as the order of the Court. I would suppose that if such a dispute existed and pre-existed the consent, it must have been addressed or ought to have been addressed in the consent. Par adventure if the dispute emerged after the consent, nothing stopped the interested party or any other party for that matter from moving the court for variation of the consent subject, of course, to the threshold set out by the Court of Appeal in Flora N. Wasike v Destimo Wamboko [1988] eKLR.
5. The consent of 17 December 2019 is, of course, binding. Ordinarily, a consent recorded as an order of court is in the nature of a contract and, as held in Flora N. Wasike v Destimo Wamboko (supra), may be interfered with only on grounds that would vitiate a contract.
(b) The removal of the restriction and the jurisdiction of this court
7. One question that I have agonised over is whether this Honourable Court is seized of the requisite jurisdiction to dispose of the issue of the placement and the lifting of the restriction in issue. There is no doubt that the restriction was registered by the Registrar in the exercise of statutory powers under the Land Registration Act, 2012 and everything else being constant, its removal would be governed by the same Act. Any dispute touching the title, the propriety of the restriction, or the exercise of the Registrar’s statutory powers over land, falls within the province of the Environment and Land Court under Article 162(2)(b) of the Constitution. The Supreme Court in Republic v Karisa Chengo & 2 Others [2017] eKLR put the matter of jurisdictional demarcation beyond doubt:
The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precluded the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.
8. That notwithstanding, the primary issue before this Honourable Court is the enforcement of its order and to the extent that the restriction the restriction stands in the way of enforcement of the order, the court is seized with the jurisdiction of ensuring that its own order is complied with more so when none of the parties who have one form of interest or the other in the property have not questioned the consent order.
9. For the reasons I have given, I am satisfied that the applicant’s is merited. The restriction paced on property known is CR 1717 Land Reference Number 351 of section 1is ultra vires the consent by the parties filed in this Honorable Court on 19 December 2019. To the extent that the restriction is contrary to the consent it is hereby lifted. The Land Registrar, Mombasa Land Registry is directed to comply with order and remove the restriction. I make no order as to costs.
2. The motion seeks four substantive orders which are that the Registrar of Titles, Mombasa, be joined as the 2nd interested party; that the court declare that there is no dispute on any of the terms of the consent dated 17 December 2019 and that the consent is clear, unambiguous and enforceable; that the restriction registered against the suit property, CR 1717, Land Reference Number 351 of Section 1 Mainland North, by the Senior Registrar of Titles vide her ruling dated 2 October 2023 be lifted and/or removed; and that the resulting orders be served on the Land Registrar for compliance.
3. The suit concerns CR 1717, Land Reference Number 351 of Section 1 Mainland North, which the 1st plaintiff charged to the defendant bank to secure financing advanced to the 2nd plaintiff. The suit was compromised by a consent dated 17 December 2019, which was adopted as an order of this court. Under that consent, in broad terms, the bank was to release the original title against undertakings, the property was to be subdivided, and replacement charges were to be registered over the resulting subdivisions to secure the balance then outstanding. The intended subdivision, however, stalled after the Senior Registrar of Titles, by a ruling dated 2 October 2023, registered a restriction against the title under section 76(1) of the Land Registration Act, 2012, pending the resolution of an alleged dispute over a sum of Kshs. 15,000,000/= said to form part of the consent monies. It is that restriction, and the alleged dispute underlying it, that the present motion seeks to resolve summarily.
4. Although the plaintiffs filed a replying affidavit to the application, they supported the defendant/applicant’s application; to be precise Mohamed Ali Heybe, who has introduced himself in the affidavit as “a director of the plaintiffs” has sworn as follows:
“8. That I make this affidavit in support of the defendant’s notice of motion for this Honourable Court to order the removal of the restriction by the land Registrar over the suit property Land Reference No. 351/1/MN CR. No. 1717, Bamburi, Mombasa County.”
5. The interested party has not filed any affidavit in response to the application. Thus, the application is effectively unopposed. And, of course, none of the parties to the consent could possibly oppose it if the restriction stands in the way of the execution of the consent. In placing the restriction on the property, the Senior Registrar of Titles ordered as follows:
“In light of the foregoing and in order to compromise the rights of the developer/interested party in as far as the Kshs. 15,000,000/- dispute is concerned, I will make the following orders:-
1. That the caution placed by the cautioners on 20th February, 2023 over parcel number 351/I/MN (CR. 1717) be and is hereby lifted and a restriction under section 76(1) of the Land Registration Act, 2012 be placed until the Kshs. 15, 000,000/- dispute is resolved and a consent agreement or court order to that effect is filed or produced for registration.”
Section 76 of the Land Registration Act which the Registrar invoked when placing the restriction reads as follows:
76. Restrictions
(1) For the purposes of compulsory acquisition 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.
According to the registrar, the restriction was informed by “the Kshs. 15,000,000/- dispute” and, therefore, of the several reasons given in section 76(1) of the Land Registration Act, for placement of a restriction, “other sufficient cause” appeals to me to be the only reason that led the Registrar to place a caveat on the 1st plaintiff’s property. By way of elimination, it could neither have been for compulsory acquisition nor for fraud or improper dealing because none of these things were alleged.
My concern with the registrar’s decision is that there is no evidence and neither is there any suggestion that the alleged dispute arose after the consent of the parties that had been subsequently adopted as the order of the Court. I would suppose that if such a dispute existed and pre-existed the consent, it must have been addressed or ought to have been addressed in the consent. Par adventure if the dispute emerged after the consent, nothing stopped the interested party or any other party for that matter from moving the court for variation of the consent subject, of course, to the threshold set out by the Court of Appeal in Flora N. Wasike v Destimo Wamboko [1988] eKLR.
5. The consent of 17 December 2019 is, of course, binding. Ordinarily, a consent recorded as an order of court is in the nature of a contract and, as held in Flora N. Wasike v Destimo Wamboko (supra), may be interfered with only on grounds that would vitiate a contract.
(b) The removal of the restriction and the jurisdiction of this court
7. One question that I have agonised over is whether this Honourable Court is seized of the requisite jurisdiction to dispose of the issue of the placement and the lifting of the restriction in issue. There is no doubt that the restriction was registered by the Registrar in the exercise of statutory powers under the Land Registration Act, 2012 and everything else being constant, its removal would be governed by the same Act. Any dispute touching the title, the propriety of the restriction, or the exercise of the Registrar’s statutory powers over land, falls within the province of the Environment and Land Court under Article 162(2)(b) of the Constitution. The Supreme Court in Republic v Karisa Chengo & 2 Others [2017] eKLR put the matter of jurisdictional demarcation beyond doubt:
The three are different and autonomous Courts and exercise different and distinct jurisdictions. As Article 165(5) precluded the High Court from entertaining matters reserved to the ELC and ELRC, it should, by the same token, be inferred that the ELC and ELRC too cannot hear matters reserved to the jurisdiction of the High Court.
8. That notwithstanding, the primary issue before this Honourable Court is the enforcement of its order and to the extent that the restriction the restriction stands in the way of enforcement of the order, the court is seized with the jurisdiction of ensuring that its own order is complied with more so when none of the parties who have one form of interest or the other in the property have not questioned the consent order.
9. For the reasons I have given, I am satisfied that the applicant’s is merited. The restriction paced on property known is CR 1717 Land Reference Number 351 of section 1is ultra vires the consent by the parties filed in this Honorable Court on 19 December 2019. To the extent that the restriction is contrary to the consent it is hereby lifted. The Land Registrar, Mombasa Land Registry is directed to comply with order and remove the restriction. I make no order as to costs.