Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutNot stated in judgment

Mwaura & another v P.N Thuku & Sons Limited; Director of Criminal Investigations & another (Interested Parties) (Environment and Land Case Civil Suit 2124 of 2007) [2025] KEELC 7320 (KLR)

Environment and Land Court
28 October 2025
2,006 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Nairobi struck out a bid to lift a DCI land restriction, ruling the plaintiffs had to first apply to the Land Registrar.

What this practically means

#

Executive summary

#
The Plaintiffs, having obtained judgment and a taxed costs certificate of Kshs. 488,687/- against the Defendant, commenced execution against Title No. Loc 16/Gatura/2174. Their Settlement of Terms of sale could not be adopted because of a restriction registered by the Directorate of Criminal Investigations on 27th November 2018. By a Notice of Motion dated 13th November 2024, the Plaintiffs sought summons for the Director of Criminal Investigations to be cross-examined on the restriction, or alternatively an order directing the Land Registrar Murang'a to lift the restriction within 14 days, with the Deputy Registrar to sign documents in default. The application was opposed by the Defendant, who argued lack of jurisdiction to join interested parties post-judgment and that the encumbrance issue had already been dealt with in a Ruling by Hon. T. Marienga (Deputy Registrar) delivered on 16th May 2024, which required a DCI report on the restriction. The Plaintiffs did not file submissions. Relying on the Court of Appeal decision in K v MWM & Another and Tanga Gas Distributors, the court held that the DCI and Land Registrar could not be joined post-judgment, since joinder under Order 1 Rule 10(2) is only available in pending proceedings. Ordering cross-examination of the DCI would amount to reopening a trial in a concluded matter; the court was functus officio. On removal of the restriction, the court held that under Sections 76 and 78 of the Land Registration Act, a dissatisfied party must first apply to the Land Registrar before approaching the court. Finding the application unmerited, the court struck it out.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiffs are entitled to the Orders as sought in the Notice of Motion dated 13th November 2024

Key legal issues

#
01

Whether the DCI and Land Registrar Murang'a could be joined as interested parties post-judgment

Holding

They cannot be joined post-judgment as the proceedings stand finally disposed of

Reasoning

Relying on the Court of Appeal decision in K v MWM & Another, the court noted that Order 1 Rule 10(2) contemplates joinder only where proceedings are pending. Following the Tanga Gas Distributors line of authority, once a suit is finally disposed of and nothing remains to be done, the joinder power becomes inapplicable. The Plaintiffs joined the parties without leave of court and post-judgment.

p. 3
02

Whether the DCI should be summoned for cross-examination on the restriction

Holding

The prayer was declined as it would amount to conducting a trial in a concluded matter

Reasoning

Cross-examination in execution is a discretionary order to be exercised judiciously. The court found that summoning the DCI for cross-examination would effectively reopen a trial in a concluded matter, and held that the court is functus officio having rendered its judgment.

p. 4
03

Whether the court should order removal of the restriction on Title No. Loc 16/Gatura/2174

Holding

The prayer was declined; the Plaintiffs should have first applied to the Land Registrar for removal of the restriction

Reasoning

Sections 76 and 78 of the Land Registration Act empower the Registrar to make, vary or remove restrictions after inquiries and hearings. Section 78(2) allows a court, on application by an affected proprietor and notice to the Registrar, to order removal. The court held the Plaintiffs ought to have first applied to the Land Registrar Murang'a before coming to court.

p. 4

Legal principles established

#
  • An application for joinder of parties can only be made in pending proceedings; once a suit is finally disposed of with nothing more to be done, Order 1 Rule 10(2) becomes inapplicable
  • A party dissatisfied with a restriction on title must first apply to the Land Registrar for its removal under Sections 76 and 78 of the Land Registration Act before approaching the court
  • A court that has rendered judgment is functus officio and cannot re-open matters by ordering post-judgment cross-examination

Court orders

#
  1. 1.The Notice of Motion application dated 13th November 2024 is unmerited and is struck out

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction; execution proceedings under the Civil Procedure Rules

Relief refused

#

Summons to the Director of Criminal Investigations to be cross-examined on the restriction

Ordering cross-examination would amount to conducting a trial in a concluded matter; the court is functus officio

p. 4

Order directing the Land Registrar Murang'a to lift/remove the restriction

A party dissatisfied with a restriction must first apply to the Land Registrar for its removal before coming to court

p. 4

Joinder of the DCI and Land Registrar Murang'a post-judgment

Joinder post-judgment is impermissible where proceedings are finally disposed of

p. 3

Costs

No costs order stated in the judgment

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances, I find the instant Notice of Motion application unmerited and will strike it out.
p. 4Final orders – striking out of the application
I opine that the Orders sought for summoning the DCI for cross examination will amount to conducting a trial when the matter has been concluded and I find that this Court is functus oficio.
p. 4Functus officio – post-judgment cross-examination
it is only when a suit or proceedings has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable
p. 3Joinder of parties post-judgment
I note the Plaintifis have joined the DCI and Land Registrar Muranga in these proceedings without leave of court and post judgment.
p. 3Joinder without leave and post-judgment
At this juncture, it is my considered view that the Plaintifis’ should have first made an application before the Land Registrar Muranga for removal of restriction before coming to Court.
p. 4Removal of restrictions – first instance application to Registrar

Issues in the judgment

#
minor

The judgment refers in paragraph 15 to 'K v. MWM & Another (2015) eKLR' while paragraph 9 lists 'JMK v MWM & Another [2015] eKLR' among the Defendant's authorities; the two appear to be the same authority cited inconsistently

minor

Supporting affidavit deponent is referred to with both 'She' and 'He' in consecutive sentences

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Mwaura & another v P.N Thuku & Sons Limited; Director of Criminal Investigations & another (Interested Parties) (Environment and Land Case Civil Suit 2124 of 2007) [2025] KEELC 7320 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7320/eng@2025-10-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.