The Applicant commenced these proceedings by Originating Summons dated 10th November 2025 seeking the following orders;
a) (SPENT)
b) THAT this Honourable Court do issue an order compelling and/or directing the 2nd Respondent to cancel and/or remove the restriction and/or inhibition registered against Land Parcel NO. MBETI/GACHOKA/473 pursuant to the 1st Respondent’s letter dated 24th February 2022.
c) THAT this Honourable Court do issue an Order restraining the 2nd Respondent from registering any other restriction and/or inhibition against Land parcel NO. MBETI/GACHOKA/473 without valid order of the Court.
d) THAT the costs of this Summons be provided for.
The application is grounded on the following nine reasons;
i) THAT Land Parcel NO. MBETI/GACHOKA/473 (the subject land parcel) was initially jointly registered to the first Applicant Peter Mburu Kimani and Tabitha Muthoni.
ii) THAT one Doris Njuthe Munyi commenced ELC Case NO. 83 of 2016 Embu against one Joseph Njiru Muturi and Harrison Nyaga Muturi claiming ownership of Land parcel MBETI/GACHOKA/473.
iii) THAT consequently thereafter the said Josphat Njiru Muturi and Harrison Nyaga Muturi together with one Lazaro Mbogo filed a statement of defence together together with a Counterclaim in which counterclaim they cited the said Tabitha Muthoni from whom they laid a claim of entitlement to land parcel MBETI/GACHOKA/473.
iv) THAT the said Tabitha Muthoni having died in 1981 and the 2nd Applicant herein having been appointed as the administrator of her estate, a new joint was issued to the 1st and 2nd Applicants on 27th May 2021.
v) THAT pursuant to a letter dated 24th February 2022 by the 1st Respondent to the 2nd Respondent without seeking to be furnished with a court order, went on the register a restriction against the subject land parcel on account of the existence of the said ELC Case NO. 83 of 2016.
vi) THAT however on 9th October 2025 the 1st Applicant sought to amend the court claim by removing the Applicants herein (among others) from the counterclaim, which prayer was allowed by the court.
vii) THAT consequently the Applicants sought from the 1st Respondent a letter addressed to the 2nd Respondent directing her to remove the restriction registered on the basis of ELC NO. 83 of 2016 to which request the 1st Respondent declined.
viii) THAT the Applicants further sought from the 2nd Respondent to remove, withdraw and/or cancel the said restriction to which request the 2nd Respondent declined demanding that she be furnished with a court order specifically directing her to remove the said restriction.
ix) THAT the Applicants rights to the unlimited use and/or enjoyment of the said subject land parcel including seeking for bank loan finances using the same as a collateral has been hampered for now over 9 years hence the urgency.
The application is further supported by the joint affidavit of the Applicants sworn the same date where they deposed as follows;
1. THAT the defendants herein are the Applicants herein hence competent to make this joint oath.
2. THAT vide a Title dated 11th July 1978 the 1st and 2nd Applicants Applicants Peter Mburu Kimani and Tabitha Muthoni were registered as joint owners of land parcel NO. MBETI/GACHOKA/473 (hereinafter referred to as ‘’ the subject land parcel’’) (Annexed herein ia a copy of the Title marked ‘’PKLM-1’’).
3. THAT one Dorris Nyuthe Munyi commenced Embu ELC Case NO. 83 of 2016 against one Josphat Njiru Muturi and Harrison Nyaga Muturi in which she claimed ownership of land parcel NO. MBETI/GACHOKA/479
4. THAT the said Josphat Njiru Muturi and Harrison Nyaga Muturi together with one Lazaro Mbogo filed a statement of defence together with a counterclaim in which counterclaim the aforesaid Tabitha Muthoni was cited as 43th Defendant against whom they claimed ownership and/or entitlement to the subject land parcel MBETI/GACHOKA/473. (Annexed herein is a copy of the said statement od Defence and Counterclaim marked ‘’PKLM-2’’).
5. THAT subsequently thereafter the 1st Respondent who was the lawyer acting on behalf of the plaintiff in the counterclaim vide a letter addressed to the 2nd Respondent requested the registration of a restriction against parcel MBETI/GACHOKA/473 on the basis of the claim in the aforesaid counterclaim. (Annexed herein is a copy of the said letter marked ‘’PKLM-3’’).
6. THAT the wording of the said restriction entry clearly showed that its lifespan was dependant upon the suit touching on the Applicant’s property stating inter-alia ‘’—RESTRICTION; NO DEALINGS UNTIL EMBU ELC CASE NO. 83 OF 2016 PENDING IN COURT IS HEARD AND DETERMINED.’’
7. THAT notwithstanding that there was no order issued by the court in ELC NO. 83/16 directing and/or ordering the registration of a restriction against the subject land parcel the 2nd Respondent nevertheless went ahead and registered a restriction thereto. (Annexed herein is a copy of the official search marked ‘’PKLM-4’’).
8. THAT the said Tabitha Muthoni having died back in the year 1981 and the 2nd Applicant having been appointed the administrator of her estate , the Applicants herein applied to be substituted as defendants NO. 43 (A) and (B) in the counterclaim which leave was granted by the court.
9. THAT vide application dated 11th September 2025 the plaintiffs in the aforesaid counterclaim sought leave of the court to amend the counterclaim by removing from the proceedings the 43rd Defendants (A) and (B) from the counterclaim among others. (Annexed herein is a copy of the said motion marked ‘’PKLM-5’’).
10. THAT when the said motion came before the court on 9th October 2025, the court granted leave inter-alia to amend the counterclaim which amendment was to include the removal from the proceedings the Applicants herein among others. (Annexed herein is a copy of the court order marked ‘’PKLM-6’’).
11. THAT essentially by the granting of the said order, the proceedings and/or claim in respect to the Applicants subject land parcel were brought to an end.
12. THAT pursuant to the aforesaid order the Applicants made a request in writing to the 1st Respondent herein requesting her to issue them with a letter addressed to the 2nd Respondent herein directing her to proceed to remove and/or mark as withdrawn the aforesaid restriction now that the suit, the basis upon which the same had been registered had now been terminated, (Annexed herein is a copy of the said letter marked ‘’PKLM-7’’).
13. THAT the 1st Respondent declined to issue the said letter stating inter-alia ‘’ kindly follow due process’’.
14. THAT notwithstanding the 1st Respondent refusal to issue the said letter as requested, the Applicant forwarded the aforesaid court order to the 2nd Respondent with a request that now that the said proceedings, the basis upon which the restriction have been registered were terminated, to proceed to cancel and/or mark the same as withdrawn. (Annexed herein is a copy of the said letter marked ‘’PKLM-9’’).
15. THAT upon receipt of the forwarding letter and the said court order, the 2nd Respondent declined to remove and/or cancel the said restriction stating ‘’------kindly favour us with the order to remove the restriction.’’ (Annexed herein is a copy of the court order with the said inscription marked ‘’PKLM-10
16. THAT from the foregoing it is apparently clear that there is no basis and/or justification as to why the said restriction should or ought to remain in force hence the refusal by the 1st Respondent to issue a letter for the removal of the restriction is unjustifiable and unprofessional and similarly, the refusal by the 2nd Respondent to remove the same, citing the necessity of a court order amounts to an abuse of her powers as a land Registrar.
17. THAT The Applicants proprietorship and/or unlimited enjoyment of their property has been unjustifiably hampered for the last 9 years owing to the existence of the said ELC Case as well as the said restriction.
18. THAT other than the aforesaid ELC Case NO. 83 of 2016, there was a previous Originating Summons Case NO. 63 of 2013 at Kerugoya that had been filed by one Titus Kigoro Munyi against the Applicants herein in respect of the same subject land parcel where he had laid claim for adverse possession which case however was, consequent upon a full hearing dismissed by the court. (Annexed herein is a copy of the Decree marked ‘’PKLM-11’’).
19. THAT following dismissal of the said O.S,the said Titus KigoroMunyi moved the Appeal Court in CA NO. 28 of 2014 Nyeri which appeal was however dismissed upon a full hearing of the same. (Annexed herein is a copy of the said judgment marked ‘’PKLM-12’’).
20. THAT notwithstanding the dismissal of the said Appeal, the said Titus Kigoro Munyi declined to vacate the subject land parcel which led to the filing of Embu ELC Case NO. 51 of 2014 by the Applicants seeking eviction orders against the said Titus Kigoro Munyi which orders were issued pursuant to a full hearing. (Annexed herein is a copy of the Decree marked ‘’PKLM-13’’).
21. THAT from the foregoing, it is apparently clear that the Applicants rights to unlimited enjoyment has in total been hampered and/or interfered with for a period of over 13 years contrary to Article 40 of the constitution.
22. THAT it is therefore just that there be an order issued baring and/or restraining the registration of any other/further restriction and/or inhibition against the subject land parcel herein in the absence of a duly issued court order to that effect.
23. THAT the Applicants have been intending to seek for financial assistance by way of a loan from their bank with an intention to carry out development on the subject land parcel by using the same as a collateral thereto which they are unable to do so due to the said restriction.
24. THAT from the foregoing it is only just that the orders herein prayed for be granted.
The application is opposed by the 1st Respondent who filed a Replying affidavit sworn on 8th December 2025 and deposed as follows;
i) THAT I am the 1st Respondent herein hence competent to swear this affidavit.
ii) THAT I have read and understood the contents of the Originating Summons dated 10/11/2025 and the same is misleading, misconceived, incompetent and an abuse of the court process.
iii) THAT on 24/02/2022, I wrote a letter to the 2nd Respondent purely in my professional capacity as an Advocate acting on instructions of my clients, namely JOSPHAT NJIRU MUTURI and LAZARO MBOGO who were parties in Embu ELC Case NO. 83 of 2016 (Annexed hereto and marked as ‘’RWN-1 is a copy of the said letter’’).
iv) THAT the said letter expressly disclosed that I was acting on behalf of my clients and at no time did I purport to act in my personal capacity.
v) THAT I neither registered the restriction nor had authority in law to remove the same, the power to register and remove restrictions being vested exclusively in the Land Registrar under the Land Registration Act.
vi) THAT in the month of September 2025, my clients withdrew their counterclaim in Embu ELC NO. 83 of 2016 upon discovering that it had been improperly introduced.
vii) THAT on 09/10/2025, I received a demand letter from the Applicants’ Advocates requiring me to issue a letter lifting the restriction and advising that their agent would collect the same from my office on 12/10/2025 (Annexed hereto and marked as ‘’RWN-2 is a copy of the letter’’).
viii) THAT the same demand was received on the eve of a public Holiday (Mazingira day) followed by a weekend and it was impossible to consult my clients within that period and obtain instructions.
ix) THAT on 13/10/2025, I replied appropriately advising that the Applicants should follow the due process as provided by law.
x) THAT I deny refusing to cooperate and reiterate that I could not lawfully purport to remove a restriction without instructions of my clients and without the involvement of the Land Registrar.
xi) THAT the Applicants are therefore dishonest in suggesting that I have obstructed removal of the restriction.
xii) THAT the Applicants also admit that the Land Registrar declined to remove the restriction without a court order thereby confirming that removal is an administrative function of the 2nd Respondent and not the 1st Respondent.
xiii) THAT I am improperly sued since my role was limited to representation of my clients and drafting correspondences which does not attract personal liability in law.
xiv) THAT the Applicants know the parties who restricted the suit property however they failed to include the said parties in this application as Respondents so that they could also be heard before any adverse orders are issued against them.
xv) THAT the Applicants have not pleaded fraud, malice, collusion or illegality against me and none has been proved.
xvi) THAT the Applicants have not demonstrated any legal basis upon which this Honourable court can issue a Mandatory order against me.
xvii) THAT the Applicants grievances , if any, lies against the Land Registrar through the statutory process under the Land Registration Act and not an Advocate who acted on clients instructions.
xviii) THAT I swear this affidavit and pray that the suit against me is struck out with costs.
xix) THAT what is deponed to herein is true to the best of my knowledge, information and belief.
APPLICANTS SUBMISSIONS.
The Applicants through the Firm of WAITHIRA MWANGI & CO. ADVOCATES submitted on the following three issues;
i) Whether the application is merited.
ii) Whether the Applicants are entitled to the reliefs sought and.
iii) Who is entitled to costs and by whom.
On the first issue, Counsel submitted that a restriction can be registered pursuant to an application being made by an interested party or by the Registrar on her own volition but in this case, the restriction was registered pursuant to a letter made by the 1st Respondent. She submitted that Section 75 of the Land Registration Act provides that such an application must be made in form LRA 75 consequent upon which the Registrar would be required to issue a Notice of intention to register a restriction by issuance of form LRA 76 to the proprietor.
She submitted no such application was ever made and no Notice of Intention was issued to the applicants and neither were they granted an opportunity to be heard before the same was registered which the submitted, contravened Article 47 of the constitution
The above notwithstanding, the Learned counsel submitted that the applicants were patient enough and participated in the hearing of the said ELC Case until the same was terminated against them as aforesaid.
They relied in the following cases; MATOYA-V-STANDARD CHARTERED BANK (K) LTD & OTHERS (2003) 1EA 140; NAIROBI MISC APPL. NO. 172 OF 2016 (UR); KERICHO ELC NO. E002 OF 2020 (UR); EMBU ELCA NO. E011 OF 2023 (UR) and the LRA.
1ST RESPONDENT’S SUBMISSIONS
The first Respondent submitted on the following grounds;
a) Whether she is improperly sued?
b) Whether the orders sought can issue against the 1st Respondent?
c) Whether the applicants complied with the land Registration Act in seeking removal?
d) Whether the court can restrain the land Registrar’s statutory discretion?
On the first issue, the 1st Respondent submitted that at all material times, she was acting purely in her professional capacity as an Advocate for her clients who were parties to EMBU ELC NO.83/2016. She averred that it is not contested that she wrote the letter dated 24/02/2022 on the express instructions of her clients and that the letter fully disclosed she was acting for the named parties. She further stated that it is not contested that the restriction was registered by the Land Registrar who by law maintains the same and not Advocates.
The 1st Respondent further submitted that the Applicants have not pleaded fraud, collusion, malice, bad faith or illegality against her as an Advocate. As such, the 1st Respondent submitted that the suit as against her is misconceived, vexatious and an abuse of the court process.
As to whether the 1st Respondent can as an Advocate acting on behalf of her clients can be compelled to remove a restriction, it was submitted that an Advocate has no statutory power to cancel, vary or remove restrictions and that the Land Registration Act vest this power exclusively in the Land Registrar and the court. It is further submitted that the Applicants in this application failed to include the parties who restricted the parcel of land and who are well known to the Applicants. She relied in Section76 and 78 of the Land Registration Act.
On the third issue, the 1st Respondent submitted that the Applicants have not demonstrated that they formally applied to the land Registrar under Section 78(1) of the Land Registration Act to have the restriction removed nor did they request for a statutory hearing before the Land Registrar. She further argued that the Applicants have not exhausted the Land Registrar’s jurisdiction and that the Land Registrar formally declined to remove the restriction without reasonable cause.
She submitted that the Applicants bypassed the statute and instead sued the 1st Respondent and submitted that the application is premature and incompetent.
As to whether the court can restrain the Land Registrar from registering future restrictions, the 1st Applicant answered in the negative and submitted that an Advocate has no statutory power to cancel, vary or remove restrictions. She cited Section 76 & 78 of the Land Registration Act. In conclusion, the 1st Respondent submitted that the suit against her discloses no cause of action, targets a wrong party, seeks illegal remedies and violates statutory process and sought to have it dismissed with costs.
LEGAL ANALYSIS AND DETERMINATION.
Having carefully considered the Originating Summons, the supporting affidavit, the replying affidavit by the 1st Respondent, the submissions by both parties, and the relevant law, I find that the following issues arise for determination:
a) Whether the restriction registered against Land Parcel No. MBETI/GACHOKA/473 was properly registered and whether it should now be removed.
b) Whether the 1st Respondent is a proper party to these proceedings and whether any orders can be issued against her.
c) Whether the Applicants have complied with the statutory process for seeking removal of the restriction.
d) Whether an order can issue restraining the 2nd Respondent from registering future restrictions without a court order.
e) Who bears the costs of these proceedings.
I shall address each issue in turn.
a) Propriety of the Restriction and Whether it Should be Removed.
The Applicants contend that the restriction was registered pursuant to a letter dated 24th February 2022 from the 1st Respondent, acting on behalf of her clients in Embu ELC Case No. 83 of 2016, without a formal application in the prescribed form or notice to them, contravening the Land Registration Act, 2012 (LRA) and Article 47 of the Constitution on fair administrative action.
Section 76 of the LRA empowers the Land Registrar to register a restriction to prevent fraud or improper dealing, either on application by an interested party or on the Registrar's own motion. However, the Land Registration (General) Regulations, 2017 prescribe that an application for a restriction must be made in Form LRA-75, and the Registrar must issue a notice of intention in Form LRA-76 to the proprietor, affording them an opportunity to be heard. Section 76(3) further requires the Registrar to give written notice to the affected proprietor without undue delay, and the restriction does not bind until such notice is received or entered in the register.
In this case, the evidence shows that no formal application was made, and no notice was issued to the Applicants prior to registration. The restriction was entered solely based on the 1st Respondent's letter, which referenced the pending suit but did not enclose a court order directing its registration. This procedure was flawed and violated the Applicants' right to be heard, as enshrined in Article 47. Kenyan courts have consistently held that restrictions must adhere to statutory procedures to avoid abuse. In Matoya v Standard Chartered Bank (K) Ltd & Others [2003] 1 EA 140, the court emphasized that restrictions are meant to prevent fraud or improper dealings and should not be maintained indefinitely once the purpose is served. Similarly, in Kericho ELC No. E002 of 2020, the court ordered removal of a restriction registered without due process.
Moreover, the restriction was explicitly tied to the pendency of Embu ELC Case No. 83 of 2016, stating: "NO DEALINGS UNTIL EMBU ELC CASE NO. 83 OF 2016 PENDING IN COURT IS HEARD AND DETERMINED." The counterclaim against the Applicants in that suit was withdrawn by court order dated 9th October 2025, effectively terminating any claim over the subject land. The purpose of the restriction has thus lapsed, and its continuation serves no legitimate interest.
Section 78(1) of the LRA allows the Registrar to remove or vary a restriction on application or own motion, after giving affected parties an opportunity to be heard. Under Section 78(2), the court may, upon application by the affected proprietor and notice to the Registrar, order removal or variation. The Applicants' requests to both Respondents were declined—the 1st Respondent advising to "follow due process," and the 2nd Respondent insisting on a specific court order. Given the procedural impropriety in registration and the cessation of the underlying suit, I find sufficient grounds to order removal of the restriction.
Comparatively, in jurisdictions like the United Kingdom under the Land Registration Act 2002, cautions (analogous to restrictions) can be registered to protect interests but must be withdrawn or cancelled by the registrar or court once the interest ceases, with liability for wrongful registration (Land Registration Rules 2003). In Australia, under the Torrens system (e.g., Real Property Act 1900 (NSW)), caveats (similar to cautions) lapse upon resolution of the claim, and courts readily order removal if improperly maintained, emphasizing protection against indefinite encumbrances (Land Titles Act 1925 (ACT)). These principles align with Kenyan law's intent to balance protection of interests with proprietors' rights under Article 40 of the Constitution.
b) Whether the 1st Respondent is a Proper Party.
The 1st Respondent argues she acted solely in her professional capacity on client instructions, without personal liability, and lacks statutory power to remove restrictions. She submits no fraud, malice, or illegality is pleaded against her.
Under Kenyan law, advocates are generally not personally liable for actions taken on client instructions unless involving fraud, negligence, or bad faith (Kinluc Holdings Ltd v Mint Holdings Ltd & Another [1998] eKLR). The LRA vests powers over restrictions exclusively in the Registrar (Sections 76-78). The 1st Respondent's letter requested the restriction but did not register it—that was the 2nd Respondent's act.
However, as the initiator on behalf of her clients (now non-parties), her involvement justifies her inclusion to afford her a hearing, especially since the Applicants sought her withdrawal letter. No evidence of malice is adduced, and her refusal to issue a withdrawal without client instructions was reasonable, given the short notice amid holidays. The suit against her discloses no personal cause of action, and orders compelling her to act would infringe her professional duties. The proper remedy lies against the 2nd Respondent. Comparatively, in UK and Australian law, solicitors requesting caveats are not personally sued for removal unless misconduct is proven; the focus is on the registrar or court (Murphy v Bayer [1986] 1 Qd R 71 (Australia).
c) Compliance with Statutory Process.
The 1st Respondent contends the Applicants bypassed Section 78(1) by not formally applying to the Registrar for a hearing.
While a formal application in Form LRA-78 is ideal, the Applicants' letter to the 2nd Respondent enclosing the withdrawal order constituted a substantive request. The 2nd Respondent's response demanding a specific order implies consideration but refusal on procedural grounds. Exhaustion of administrative remedies is not absolute where, as here, the Registrar insists on court intervention (Republic v National Environment Management Authority [2011] eKLR). The application is not premature, as Section 78(2) expressly allows direct court recourse.
d) Restraining Future Restrictions.
The Applicants seek to restrain the 2nd Respondent from registering further restrictions without a "valid order of the Court." Section 76 permits the Registrar to impose restrictions on own motion or application for sufficient cause, without always requiring a prior court order—e.g., to prevent fraud. Mandating court orders for all restrictions would unduly fetter the Registrar's statutory discretion (Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125).
However, given the history of multiple suits (including dismissed claims in Kerugoya OS No. 63 of 2013 and CA No. 28 of 2014) and the 13-year interference with the Applicants' enjoyment, an order ensuring future restrictions comply strictly with procedural safeguards (e.g., notice and hearing) is warranted to protect Article 40 rights. Comparatively, Australian courts issue injunctions against abusive caveats (Custom Credit Corp Ltd v Ravi Nominees Pty Ltd (1992) 8 WAR 42), and UK tribunals caution against indefinite restrictions.
e) Costs.
Costs follow the event under Section 27 of the Civil Procedure Act. The Applicants succeed substantially, but the 1st Respondent's opposition was not frivolous. The 2nd Respondent filed no response, warranting costs against her.
DISPOSITION.
For the reasons stated:
1. The restriction registered against Land Parcel No. MBETI/GACHOKA/473 on the basis of Embu ELC Case No. 83 of 2016 is hereby ordered removed forthwith. The 2nd Respondent is directed to cancel and/or remove the said restriction within 14 days of this judgment.
2. The 2nd Respondent is restrained from registering any further restriction against Land Parcel No. MBETI/GACHOKA/473 without complying with the procedural requirements under Section 76 of the Land Registration Act, 2012, including issuing notice to the proprietors and affording them an opportunity to be heard.
3. The suit against the 1st Respondent is dismissed with no order as to costs.
4. The costs of this Originating Summons shall be borne by the 2nd Respondent.
Orders accordingly.
DATED, DELIVERED AND SIGNED AT EMBU THIS 26TH DAY OF FEBRUARY, 2026.
---------------------------------------
HON E. C. CHERONO
JUDGE
ENVIRONMENT AND LAND COURT
In the presence of;
1. M/S Rose Njeru for the 1st Respondent.
2. 2nd Respondent/Avocate-absent.
3. Waithera for the Applicant.
4. Diana Kemboi C/A.
| 19 |