Jane Elizabeth Rose v Land Registrar Eldoret Land Registry & another
The bottom line
#Kenya's Environment and Land Court has ruled that land restrictions registered without notice or hearing of the owner are void and must be removed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether making inquiries from the proprietor by the Registrar under section 76(1) of the LRA is mandatory and the consequence of failure to do so
- 2.Whether issuing a notice to the proprietor by the Registrar under section 76(1) of the LRA is mandatory and the consequence of failure to do so
- 3.Whether hearing the proprietor before registration of a restriction under section 76(1) of the LRA is mandatory and the consequence of failure to do so
- 4.Whether issuing a notice to the proprietor after registration of a restriction under section 77(1) of the LRA is mandatory and the consequence of failure to do so
- 5.Whether the 1st Respondent complied with the law in relation to removal of the restriction and whether the delegation of the Applicant's Application to the 2nd Respondent was ultra vires
- 6.Whether there is a definite period fixed for the life of a restriction
- 7.Whether the Applicant has made out a case for removal of the impugned restriction or be sustained in public interest as urged by the 2nd Respondent
- 8.Which party should bear the costs of this suit?
Key legal issues
#Mandatory nature of pre-registration inquiries, notice and hearing under section 76(1) LRA
The discretion in section 76(1) relates only to the decision whether to register a restriction; the inquiries, notice and hearing are conditions precedent and mandatory, reinforced by Regulation 81(2) and Form LRA 76
The court construed the parenthesis in section 76(1) as deliberately positioning inquiries, notice and hearing as conditions precedent to a judicious exercise of the discretion. Regulation 81(2) uses the mandatory 'shall' for pre-registration notice, and Form LRA 76 amalgamates notice, inquiries and hearing addressed to the proprietor. Only this construction is compatible with Article 47(1)&(2) of the Constitution.
Consequence of non-compliance with sections 76(1), 77(1) and 78(1) LRA
Failure to comply rendered the registration and sustenance of the restriction unlawful, void and a nullity per the Mcfoy rule
On a preponderance of probabilities the 1st Respondent failed to make inquiries, serve notice, hear the Applicant before registration, or give post-registration notice, contrary to statute, Regulation 81, section 4 FAAA and Articles 40(2)(b), 47 and 48. Applying Mcfoy v United Africa Company, an act that is void is a nullity and proceedings founded on it collapse.
Delegation of the removal application to the EACC
The referral could be construed as a notice under section 78(1), but the failure to set down the application for hearing and determination was an abdication and ultra vires, constituting the EACC a judge in its own cause
The Registrar is duty-bound under section 78(1) and Regulation 81(5)-(6) to hear and determine a removal application. Referring it to the 2nd Respondent and doing nothing thereafter left the Applicant with a Hobson's choice and amounted to unlawful delegation and bias contrary to Article 50(1).
Duration of a restriction and proportionality
No definite period is fixed for restrictions under section 76(2)(b) & (c), but the law does not envisage a restriction ad infinitum; approximately two years and one month of inconclusive investigations was unreasonable
Section 58 of the Interpretation and General Provisions Act requires things to be done without unreasonable delay where no time is prescribed. Applying the proportionality test in the CCK case, sufficient cause existed for temporary preservation, but the period spent was adequate to complete document-based investigations and indefinite prolongation without progress was unjustified.
Public interest in sustaining the restriction
Public interest is anchored in the rule of law; since the restriction was registered in flagrant disregard of the law, sustaining it would defeat public interest
Drawing on Murungaru, Fazal, Kinyanjui, BAT Kenya and the Goldenberg Commission cases, the court held that the Constitution reflects the supreme public interest and that a public body acting in disregard of law defeats the very public interest for which it was constituted. The 2nd Respondent's thesis that the restriction should be sustained was therefore rejected.
Legal principles established
#- Whereas the Registrar's decision whether to register a restriction under section 76(1) LRA is discretionary, pre-registration inquiries, notice and hearing of the affected proprietor are mandatory conditions precedent
- Post-registration notice to the proprietor under section 77(1) LRA is mandatory and admits no discretion
- The Registrar is duty-bound to hear and determine an application for removal of a restriction under section 78(1) LRA and cannot delegate that determination to another public body
- The law does not envisage a restriction ad infinitum; where no time-frame is prescribed, the cause for the restriction must be pursued without unreasonable delay
- Public interest cannot be sustained where the public body acted in total disregard of the law; rule of law is the most significant component of public interest
Court orders
#- 1.Declaration that the 1st Respondent's wilful failure to comply with sections 76(1), 77(1) and 78(1) of the LRA, Regulation 81 of the Land Registration (General) Regulations, section 4 of the FAAA and Articles 47(1)&(2), 40(2)(b) and 48 of the Constitution in registering and sustaining the restriction is unlawful, void and a nullity
- 2.Declaration that the continued sustenance of the restriction for an indeterminate period without conclusion of investigations or institution of recovery proceedings is unreasonable, disproportionate and unlawful, void and a nullity
- 3.Order that the 1st Respondent shall within thirty (30) days remove the restriction from the register, failing which the restriction shall stand automatically removed upon expiry of the thirty (30) days
- 4.The Applicant shall have costs of the OS, to be shouldered by the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 13 and 19 of the Environment and Land Court Act; sections 76, 77 and 78 of the Land Registration Act; Order 37 Rule 8 of the Civil Procedure Rules
Relief refused
#Costs against the 2nd Respondent
Costs were awarded only against the 1st Respondent, whose conduct occasioned the suit; no costs order was made against the 2nd Respondent
Costs
The Applicant shall have costs of the OS, to be shouldered by the 1st Respondent.
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.
whereas a decision by the Registrar to register a restriction under section 76(1) LRA is discretionary, the action of making inquiries from the a ected party, issuance of a notice of the intention to register a restriction to the a ected party, and hearing the a ected party under section 76(1) of the LRA is mandatory.
the Registrar has absolutely no discretionary power in relation to issuance of a post-registration notice, in writing, to notify the proprietor a ected by the restriction.
the Registrar lacks discretionary power to elect whether to hear and determine or not. In other words, the Registrar is duty-bound to determine the Application.
in instances where no prescribed time-frame and especially where a public act curtails a right, the law does not at all envisage a restriction ad in nitum.
if a public body was constituted or an act progressed by the public body in public interest but in total disregard of the law, then it defeats the very public interest for which it was constituted or the act progressed.
this Court hereby issues an order that the 1st Respondent shall within a period of thirty (30) days from the date of this Judgment remove the restriction from the register, failing which the impugned restriction shall stand automatically removed upon expiry of the thirty (30) days.
The Applicant shall have costs of the OS, to be shouldered by the 1st Respondent.
Issues in the judgment
#Conflicting dates for the EACC letter requesting restriction: 20th June 2024 in the OS versus 21st June 2024 in the affidavits and the court's findings
Removal application dated 6th October 2025 in pleadings but referred to as 5th October 2025 in the questions and conclusion
Paragraph 70 states restrictions other than under section 76(2)(a) 'have definite period', contradicting the holding that no definite period is fixed
Paragraphs 90 and 91 duplicate the same introductory sentence on exercise of discretion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Elizabeth Rose v Land Registrar Eldoret Land Registry & another", Case Analysis (2026). Environmental and Land Originating Summons E037 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.