Jane Elizabeth Rose v Land Registrar Eldoret Land Registry & another

proprietor seeking removal of a restriction under section 78(1) of the LRA, and whether the Registrar can lawfully so delegate determination thereof to another public body. Part II: The Applicant’s Case 3. The Applicant brought this action against the Respondents, vide an OS dated 8th December 2025 and led on the even date – stated to have been brought under sections 1A, 1B, 3 and 3A of the Civil Procedure Act (hereinafter “CPA”); section 3, 13 and 19 of the Environment and Land Court Act (hereinafter “ELCA”); sections 76, 77 and 78 of the LRA; and Order 37 Rule 8 of the Civil Procedure Rules (hereinafter “CPR”) – seeking Judgment for: i. A declaration that the 1st Respondent’s failure to direct inquiries to be made notices to be served and hearing the Applicant prior to registering a restriction on the suit property known as Eldoret Municipality/ Block 8/38 on 27-06- 2024 upon the 2nd Respondent’s letter dated 20-06- 2024 to the 1st Respondent, failure to give notice to the Applicant of the subsequent registration of the said restriction on the suit property and or refusal to consider and determine the Applicant’s Application for removal of the said restriction on the sit property and or refusal to consider and determine the Applicant’s Application for removal of the said restriction and reference of the same to the 2nd Respondent was ultra vires and contrary to section 76 (1), 77 and 78 of the Land Registration Act, Section 4 and 6 of the Fair Administrative Act and Article 47 of the Constitution of Kenya thus illegal, unprocedural and unreasonable limitation to the Applicant’s right to deal in her said property. ii. A declaration that the 2nd Respondent’s decision to apply and obtain registration of a restriction on the suit property known as Eldoret Municipality/ Block 8/ 38 by a letter reference number 6/16/I VOL. IV/ 184 served 20-06- 2024 without prior notice to the Fair Administrative Actions Act and Article 47 of the Constitution of Kenya thus illegal, unprocedural and unreasonable limitation to the Applicants right to deal in her said property. iii. A declaration that the Respondents of the Applicant restriction on any dealings on the suit property known as Eldoret Municipality/ Block 8/38 until the 2nd Respondent alleged undisclosed investigations for indenite period upon the 2nd Respondent’s letters dated 20-062024 not disclosed to the Applicant is unlawful, unprocedural, unreasonable and unjustiable. iv. The restriction registered on the suit property on 27-06-2024 upon the 2nd Respondent’s letter 20-06-2024 to the 1st Respondent be and is hereby removed or cancelled from the land records in respect of the suit property known as Eldoret Municipality /Block 8/ 38. v. Costs of the Suit. 4. In the OS, the Applicant claims that she is the registered owner and proprietor of the suit property, measuring 1.23 hectares and situate in Eldoret. The Applicant avers that on or about 21st March 2025, upon conducting a search for purposes of pursuing development approvals, the Applicant discovered a restriction which was registered on 27th June 2024 by the 2nd Respondent, restricting any dealings on the said property until investigations are concluded as per a letter addressed to the 1st Respondent by the 2nd Respondent (Ref. 6/6/IVOL.IV/184 dated 20-6-2024). 5. The Applicant avers that this OS was provoked by the failure by the 1st Respondent to hear and determine her Application dated 6th October 2025, seeking to lift the said restriction and which instead the 1st Respondent referred to the 2nd Respondent, against the provisions of section 78 of the LRA. The grounds of the OS are summarized as follows: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 2

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i. That prior to the registration of the said restriction, the Applicant was neither notied of the intention to register the restriction nor accorded an opportunity to be heard in defence or make representations against such intention by the Respondents contrary to section 76(1) of the LRA; sections 4 and 6 of the Fair Administrative Actions Act (hereinafter “FAAA”); and Article 47 of the Constitution; ii. That since 27th June 2024 when the restriction was lodged, the alleged investigations have remained inconclusive, with no time frame, subjecting the Applicant’s property to an indenite and uncertain restriction; iii. That the purported investigations by the 2nd Respondent are ultra vires on grounds that its statutory mandate is restricted to public property and yet the suit property is a private property; iv. That there is no judgement or decree of a Court of competent jurisdiction impeaching the Applicant’s title and there is no basis of any undisclosed investigations by the 2nd Respondent or basis to restrict dealings on the said property; v. As a result, the restriction is limiting or denying the Applicant her right to use and deal in the suit property which is unjustied, unreasonable, baseless, oppressive, unprocedural and unlawful and the indenite encumbrance is prejudicial to the Applicants right to property; and vi. Finally, that on 6th October 2025, the Applicant lodged an Application seeking removal of the restriction but the 1st Respondent has failed or refused to hear and determine it, and instead delegated to the 2nd Respondent, which is ultra vires section 78 of the LRA. 6. In the said Adavit in Support of the OS, the grounds set out above have been rehashed. It is further deponed that by a letter dated 2nd April 2025 addressed to the 2nd Respondent by the Applicant’s advocate, seeking clarication on the alleged investigations, the Applicant received a letter dated 8th May 2025, in which the 2nd Respondent indicated that the suit property was under active investigations to establish whether it is a public land but the Applicant was not been furnished with the letter dated 20th June 2024, despite several follow-up letters addressed to the 2nd Respondent including the one dated 13th May 2025. In addition, it is deponed that the Respondents’ unresponsiveness and failure to give full disclosure of the purported investigation or indenite dragging of the alleged investigation in order to maintain a restriction on the suit property is contrary to Articles 35 (1)(b), 40, 47, 66 (1) and 232 (1) (a-f) of the Constitution of Kenya. 7. Regarding the acquisition history of the suit property, it is deponed that the suit property was inherited from the Applicant’s deceased parents namely James Myles Oswald and Gladys Lilian Oswald, who jointly acquired the same in 1964 from Shirley Gaye Brashaw, and that the said property was a leasehold interest for 99 years from 1st August 1910. It is deponed that the Applicant’s late father, James Myles Oswald, died on 1st July 1991 and survived by the Applicant’s mother, Gladys Lilian Oswald, who became the exclusive registered owner. In addition, it is deponed that the leasehold interest in the said property was due to expire on 1st August 2010 but her said mother applied and successfully secured an extension of the lease vide a letter dated 14th July 2010, for a term of 50 years w.e.f. 1st August 2009, which she accepted, paid the requisite premium within the requisite premium within the requisite time as required and was issued with a certicate of lease. It is further deponed that her mother died intestate on 24th March 2013 and that the Applicant is the heir and executor of the said estate who has since become the registered owner of the above property by transmission which was registered on 7th November 2014 and a Certicate of Lease issued in the Applicant’s name. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 3

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8. In buttressing the OS, the following documents were exhibited: (i) A Certicate of Lease dated 7th November 2014; (ii) An Ocial Search dated 21st March 2025; (iii) Copies of letters dated 2nd April 2025; and 13th May 2026 by the Applicant’s Advocate to the Respondents; (iv) A copy of Indenture dated 1964 between James Myles Oswald and Gladys Lilian Oswald as Purchasers and Shirley Gaye; (v) Certicate of Lease for the suit Property in Gladys Lilian Oswald’s name; (vi) A copy of the registered Application to be registered as proprietor of the suit property by transmission; (vii) The Applicant’s Application to Remove the Restriction dated 6th October 2025, Form LRA 9 dated 6-10-2025; (viii) Ardhi Sasa Receipt and 1st Respondent’s Receipts; and Cross referenced documents. 9. In her further Adavit dated 12th June 2026, the Applicant denies every allegation in the 1st and 2nd Respondents’ Replying Adavits. The Applicant has largely rehashed the depositions in the Adavit in support of the OS. It is further deponed that no prima facie evidence or material has been placed before the Court by the Respondents to support the purported belief, suspicion or allegations that the suit property was public property, illegally or irregularly acquired by herself or predecessors at any time to validate the purported restriction to the Applicant’s right and that the restriction is thus unjustied, oppressive, unfair, unlawful and violation of the Applicant lawful right to enjoyment, dealing and use of property without any just cause. 10. This OS was canvassed by way of written submissions. In her written submissions dated 25th June 2026, and led on even date, Learned Counsel Ms. Nyathi, instructed by the Firm of Litoro & Omwebu Company Advocate proposed three issues for determination by this Court as follows: 11. i. Whether the Respondents complied with the law in registration of the restriction and/or violated the law and the Applicant’s right in registration of the restriction on the suit property; ii. Whether the Respondent have justied refusal to remove the restriction on the suit property; and iii. Whether the reliefs in the Originating Summons should be granted. Regarding the rst proposed question whether the Respondents complied with the law in registration of the restriction and/or violated the law and the Applicant’s right in registration of the restriction on the suit property, it is submitted that sections 76(1)and 77 of the LRA codies and guarantees the Applicant the right to fair administrative action and fair hearing enshrined in Article 25(1), 47 and 50 of the Constitution, before a restriction is registered against any property and that the same rights are safeguarded under sections 4, 5 and 6 of the FAAA. It is further submitted that the Respondents are obligated to comply with Article 10 of the Constitution. It is submitted that the allegations must fall within the corners of Section 26 of LRA, otherwise, the Respondents actions which are ultra vires Section 76(1) of LRA water down the legal and constitutional safeguards against bias and abuse of power and authority by the Respondents as demonstrated in this case. In this connection, it is contended that the Respondents have failed to rebut the Applicant’s claim that no notice of intention to restrict dealings on the Applicant’s suit property was served upon her, with evidence supporting the claim that the suit property is public land irregularly allocated to her. Further, it is argued that no evidence or material has been placed before this Court by the Respondents, jointly and severally, to rebut the claim that they never invited or heard the Applicant’s defence against the intention to register the restriction. In addition, it is submitted that no evidence has been tabled to show that there was an inquiry on the matter by the rst 1st Respondent that the Applicant was invited or heard in the said inquiry prior to registration of the restriction. For the Applicant, it is urged that the right to be heard, fair hearing and natural justice are inalienable and the limitations visited upon the Applicant were a result of violation of the above, citing Green & another v Kazungu & 2 others (Civil Appeal https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 4

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E017 of 2020) [2022] KECA 991 (KLR) (23 September 2022) (Judgment), adopted with approval at paragraph 31 of the Judgment in Republic vs. the Honourable the Chief Justice of Kenya & Others Ex Parte Justice Moijo Mataiya Ole Keiwua Nairobi HCMCA No. 1298 of 2004, to the eect that impeachment of a title must be specically be pleaded and particularized and proved to the balance of probabilities as required by section 107 of the Evidence Act, failing which there is no justication for the Respondents to register and maintain a restriction on the suit property, to buttress this proposition. And nally, it is urged that no fraud or improper dealings have been pleaded, particularized or any material or evidence shown to support a prima facie case justifying registration of a restriction and that there are no lawful grounds under section 26 of the LRA to challenge or impeach or limit the Applicant’s absolute and indefeasible and interest or right to deal in the suit property and that the Respondents have not shown any title or instrument supporting the claim that the suit property was originally public land or reserved for public purpose at any time. It is thus urged that the Applicant has proved on a balance of probabilities that the 1st Respondent violated the Applicant’s right to fair hearing and natural justice as well as sections 76 (1) and 77 of LRA and Articles 25 (1), 47 and 50 of the Constitution. It is further urged that the Applicant has in the suit property demonstrated that the suit property was at all material times private land inherited from her parents who acquired it in 1964 from Shirley Gaye Brashaw while it was 99 years lease from 1st August 1902 and that the lease expired on 1st August 2010 and the same was extended for a term of 50 years by the Applicant’s parents by a letter dated 14th July 2010 for a term of 50 years from 1st August 2009 and a Certicate of Lease was accordingly issued. It is submitted, that the allegations that the suit property was public land which is irregularly allocated to the Applicant is clearly baseless, frivolous and an afterthought. 12. It is submitted that section 58 of the Interpretation and General Provisions Act provides that “Where no time is prescribed or allowed within which anything shall be done, such thing shall be done without unreasonable delay.” In this context, it is argued that the 2nd Respondent cannot purport to investigate the suit property indenitely. It is submitted that a period of over two years of investigations without an end or tangible evidence is already inordinate, inexcusable and unreasonable delay in breach of section 58 of the Interpretation and General Provisions Act especially in this case where the Applicants of 70 years right to deal in her land has been restricted over unknown claims. It is submitted that it is a principle of equity that there can be no wrong without a remedy and justice delayed is justice denied under Article 159(2) (b) of the Constitution, placing reliance upon the Supreme Court of Kenya decision in Maina & 87 others v Kagiri (Civil Appeal 6, 26 & 27 of 2011 (Consolidated)) [2014] KECA 880 (KLR) (22 January 2014) (Judgment), which emphasized the Court’s obligation under Article 159(2) (b) of the Constitution. It is submitted that Respondents lack of accountability, transparency, professionalism, unresponsiveness and failure to promptly and or timely respond to the Applicants queries and or conclude investigations after over 2 years while seeking to indenitely limit Applicants right to property is contrary to values and principles of public service guaranteed at Article 232(1) (a, c, d, e and f) of the Constitution of Kenya. Lastly, it is submitted that the most reasonable less restrictive means to achieve the purpose of 2nd Respondent under Article 24(1) (e) of Constitution of Kenya is for lifting the restriction, injunctive orders and allowing the 2nd Respondent to le suit if any and apply for interim which this Court will impartially the law, balance adjudicate based on evidence and impartially the rights of parties while observing fair hearing and natural justice commands and as opposed to restriction by the Land Registrar who is subject to impartial directions of the 2nd Respondent and not judicious, independent and when the 2nd Respondent is a party to the matter. 13. Turning to the question on whether the Respondent have justied refusal to remove the restriction on the suit property, it is submitted that the 1st Respondent’s Replying Adavit acknowledges that it referred the Application for removal of the restriction to the 2nd Respondent. Further, it is submitted that attempts to exploit the statutory forum before the 1st Respondent under section 78 of LRA by https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 5

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the Applicant were frustrated when the 1st Respondent admitted abdication of its statutory duty by purporting to refer the Application to the 2nd Respondent. In this context, there was no statutory basis for such reference and it was thus ultra vires section 78 of LRA which is a complete code on the statutory obligations of the 1st Respondent in adjudication of an Application for removal of a restriction. It is submitted further that it is clear bias for the 1st Respondent to refer an Application for removal of the restriction to the Applicant of the same restriction to adjudicate the case and that the 1st Respondent purported to crown the 2nd Respondent the position of a judge it its own cause. It is argued that this amounts to bias and abuse of power. It is submitted that the 2nd Respondent did not request for compliance with section 76(1) of LRA at all in its letter dated 16th June 2024 but commanded and directed registration of a restriction. The 1st Respondent’s failure to perform a statutory duty under section 76(1) and 78 of LRA and purport to delegate the said obligation was without any is no legal basis and ultra vires. Lastly, it is submitted that the 1st Respondent was not justied in failure to consider the Applicants Application under section 78 of LRA or carry out the requirements of section 76(1) of LRA before registration of a restriction. 14. This Court is thus urged to grant the prayers sought in the said OS. Part III: The 1St Respondents’ Case 15. The OS was opposed by the 1st Respondent. 16. In its Replying Adavit dated 18th May 2026 and led on the even date, the 1st Respondent depones that the Applicant is the registered owner of the suit property and that a Certicate of Lease in the name of the Applicant was issued on 7th November 2014. The 1st Respondent depones that the 2nd Respondent, vide a letter dated 21st June 2024, sought for the registration of a Restriction on any dealings whatsoever on the suit property until their investigations are or were concluded and that pursuant to the said Application, it registered a restriction on the suit property on 27th June 2024. 17. It is deponed that the registration of the said Restriction was carried out in the lawful exercise of the 1st Respondent’s statutory mandate under section 76(1)(2)(b) of the LRA Act which empowers a Registrar to register a restriction against dealings on any land for the purposes of the prevention of any fraud or improper dealing upon Application by a competent authority established under Article 79 of the Constitution of Kenya and the Ethics and Anti- Corruption Commission Act 2011. The 1st Respondent thus depones that the registration was in accordance with the provisions of the LRA. 18. Regarding the Applicant’s complaint that she was not given notice before the registration of restriction, the 1st Respondent depones that the Restriction was registered pursuant to section 76(1)(2)(b) of the LRA which does not impose an obligation on the Registrar to issue prior notice to the proprietor before registering a restriction applied for by a competent government body such as the 2nd Respondent in the course of its investigations. 19. Regarding the Applicant’s Application dated 6th October 2025 for the removal of the restriction, the 1st Respondent depones that upon the receipt of the said Application, and in view of the fact that the restriction was registered pursuant to and upon the Application of the 2nd Respondent for purposes of ongoing investigations, the 1st Respondent referred the matter to the 2nd Respondent for its response and guidance, as is proper administrative procedure. The 1st Respondent denies that this referral was unlawful or ultra vires section 78 of the LRA. The 1st Respondent further denies that the registration of the Restriction was contrary to sections 76(1), 77 and 78 of the Land Registration Act; section 4 ad 6 of the FAAA; and Article 47 of the Constitution of Kenya. The 1st Respondent denies that it acted in bad faith, capriciously or in violation of the Applicant’s constitutional rights and any obligation with https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 6

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respect to the conduct, disclosure or duration of the investigations that are subject of restriction vest wholly with the 2nd Respondent and not with the 1st Respondent. 20. The 1st Respondent depones that since the suit property is still registered in the name of the Applicant, the Restriction does not divest the Applicant of ownership of the suit property, since it merely prohibits dealings (transfer, sale or otherwise) pending the conclusion of investigations by the 2nd Respondent. 21. Finally, the 1st Respondent depones that the OS does not disclose any unlawful conduct on the part of the 1st Respondent and the claims against the 1st Respondent ought to be dismissed. 22. The 1st Respondent exhibited: (i) A copy of a letter annexed to the 2nd Respondent Replying Adavit marked ABG 1; and (ii) A copy of the White Card marked ABG2. 23. In his written Submissions date 10th July 2026 and led on even date, Learned Counsel Mr. Kwame Ramo, Senior State Counsel instructed by the Hon. Attorney General, proposed four questions for determination as follows: i. Whether the 1st Respondent acted within its statutory mandate in registering the restriction; ii. Whether prior notice to the Applicant was mandatory before registration of the restriction; iii. Whether the Applicant’s constitutional and statutory rights were violated; and iv. Whether the reliefs sought against the 1st Respondents are available. 24. In relation to the proposed question whether the 1st Respondent acted within its statutory mandate, it submitted that the evidence before Court demonstrates that by a letter dated 21st June 2024, the 2nd Respondent requested the registration of a restriction against the suit property pending completion of investigations and that pursuant to the said request, the 1st Respondent registered a restriction on 27th June 2024, relying on section 76 (1) of the Land Registration Act. It is submitted that power conferred upon the Registrar is discretionary and is intended to preserve property where circumstances warrant protective intervention. It is further submitted that the 2nd Respondent is established under Article 79 of the Constitution and the Ethics and Anti- Corruption Act, with statutory authority to investigate the acquisition of public land and suspected corruption-related transactions. It is submitted that the request by the 2nd Respondent constituted sucient cause within the meaning of section 76 of the LRA and justied the registration of the restriction. It is thus concluded that the 1st Respondent acted strictly within the law and fulllment of a statutory obligation aimed at preserving the subject property pending investigation. 25. Regarding to the proposed question whether prior notice to the Applicant was mandatory, it is submitted that the Applicant’s principal complaint is that she was not accorded notice before the restriction was registered. It is submitted that the 1st Respondent urged that the law does not impose an inexible requirement for prior notice in every case. It is thus concluded that section 76(1) of the LRA grants the Registrar discretionary power regarding inquiries, notices and hearings depending on the circumstances of each case. In addition, the said provision employs the phrase ‘hearing such persons as the Registrar considers t’ the statutory language clearly confers discretion upon the Registrar. In this connection, it is submitted that where a competent investigative requests preservation of property pending investigation, insisting on prior notice may defeat the very purpose of the restriction and expose the property to transfer, alienation or dissipation before investigations are concluded. Further, it is argued that Courts have consistently recognized that restrictions and cautions serve a protective https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 7

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function and may be registered to preserve the status quo pending determination of competing interests or investigations. 26. In relation to the question whether the Applicant’s constitutional and statutory rights were violated, it is submitted that the restriction does not deprive the Applicant of ownership of the suit property and the Applicant remains the registered proprietor of the suit land. It is further submitted that the restriction merely suspends dealings with the property pending investigations and that the action taken by the Registrar was authorized by statute and was undertaken pursuant to a request from a legally mandated constitutional commission. It is thus concluded that the administrative action undertaken pursuant to express statutory authority cannot be impugned merely because it aects a proprietary interest. Lastly, the 1st Respondent submits that the Applicant has not demonstrated bad, malice, irrationality, procedural impropriety or abuse of power on the part of the 1st Respondent and the threshold establishing a violation of Article 47 has therefore not been met. 27. In respect to the question whether the referral of the of the Applicant’s Application for removal of restriction was lawful, it is submitted that the referral was both prudent and lawful. It is submitted that before considering removal of the restriction, it was necessary for the Registrar to ascertain the status of those investigations and obtain the view of the agency that requested preservation of the property. It is submitted that the restriction had been entered at the instance of the EACC for purpose of ongoing investigations and therefore before considering removal of the restriction, it was necessary for the Registrar to ascertain the status of those investigations and obtain the views of the agency that requested the preservation of the property. In conclusion, it is urged that the referral was therefore a reasonable administrative step intended to facilitate informed decision making and cannot be characterized as unlawful delegation of statutory authority. 28. Lastly in regards to the issue as to whether the orders sought against the 1st Respondent should issue, it is submitted that the Applicant seeks orders directed against the 1st Respondent despite the absence of any unlawful conduct on its part. It is thus urged that the evidence before Court establishes that the impugned restriction was registered pursuant to a request from a competent constitutional body; the registration was authorized by section 76 of the Land Registration Act; the Applicant remains the registered proprietor of the property; and no evidence of bad faith, malice, arbitrariness or illegality has been established against the 1st Respondent. 29. Regarding the complaint that the restriction is indenite, it is submitted that the dispute concerning the propriety, duration and justication of the investigations is a matter falling primarily within the mandate of the 2nd Respondent. 30. This Court is consequently urged to dismiss the case against the 1st Respondent for lacking merit, with attendant costs. Part IV: The 2Nd Respondent’s Case 31. The 2nd Respondent did equally oppose the OS via a Replying Adavit dated 26th February 2026 and led on the even date. 32. The 2nd Respondent depones that it is established under Article 79 of the Constitution as read together with section 3(1) of the Ethics and Anti-corruption Commission Act 2011, with a mandate to inter alia institute and conduct proceedings in Court for purposes of the recovery or protection of public property. It depones that it is empowered by law to investigate the conduct of any person/or body which in its opinion constitute corruption or economic crimes, and unethical conduct pursuant to the provisions of Chapter Six of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 8

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33. The 2nd Respondent depones that in exercise of its mandate, the 2nd Respondent received a complaint that suit property is public property, illegally registered in the name of a private individual and that it initiated investigations to ascertain the veracity of the said complaint. It is deponed that on 21st June, 2024 and in line with section 76 (1)(2)(b) of the LRA, it made an Application for a restriction on any dealings whatsoever (transfer, sale or otherwise) on the suit property. It is deponed further that following the said Application, a restriction was registered against the suit property on 27th June 2024 (restricting any dealings on the property until investigations are concluded). It is deponed in this connection that the said restriction was placed in good faith for purpose of preserving the subject matter of investigation to avoid any fraudulent dealings with the property which would obstruct the 2nd Respondent in execution of its mandate or render the investigations nugatory. 34. The 2nd Respondent depones that the said investigations have not been completed because of the need to ensure that all relevant evidence is collected but the investigations are at an advanced stage and the 2nd Respondent intends to le a recovery suit once the investigations are complete. 35. It is deponed that the 2nd Respondent conducts its investigation in accordance with Article 10 of the Constitution and with emphasis; independently with due regard for the rule of law, in good faith and for public interest and without evidence to the contrary the Commissioner’s power to investigate should not be or appear to be curtailed or fettered. It is further deponed that it is in the interest of the public to retain the Restriction to enable the Commission conclude the investigation, to establish whether the subject land was public land and whether there was any procedural impropriety, illegality or irregularity in the allocation of the subject land. 36. Regarding the Application to lift the restriction, it is deponed that the 2nd Respondent is apprehensive that should the Restriction be lifted, set aside or varied, the Applicant may deal with the land in a manner that would interfere, convolute and/or complicate the investigations rendering the investigations and the intended Civil recovery suit nugatory. 37. Further, it is deponed that the Applicant has not demonstrated any fraud, procedural impropriety, illegality or irregularity in the conduct of the investigations to justify the orders sought. It further depones that the Originating motion lacks merit, is scandalous and an abuse of the Courts process and should therefore be dismissed with costs to the Respondents. A copy of the letter to the County Land Registrar Uasin Gishu County, dated 21st June 2024, was exhibited. 38. In her written Submissions dated 1st July 2026 and led on the even date, Learned Counsel, Ms. Faith Kavita instructed by the Ethics and Anti-Corruption Commission, proposed two issues for determination: 39. i. Whether the Application by the 2nd Respondent for restriction was done in accordance with the law; and ii. Whether the restriction should be removed or varied. Regarding the question on whether the Application for restriction done pursuant to the provisions of the law, it is submitted that with reference to section 76 (1) of LRA, a Land Registrar can place a restriction in three instances such as prevention of fraud, curb improper dealing of land and for any sucient cause and the law is clear that the said land Registrar may move suo moto or on Application of any person interested in the land. It is submitted that the conditions were met in applying for the restriction as the 2nd Respondent made an Application for restriction following a complaint that was received alleging the illegal allocation of the suit property. It is submitted that the credibility of the title in favour of the Applicant or any other person was in question including the possibility of https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 9

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the involvement of illegal, irregular and fraudulent activities in the allocation of the suit property. It is submitted that the complaint fell squarely within the mandate of the 2nd Respondent to recover land and thus by virtue of the provisions of the Anti- Corruption and Economic Crimes Act, No. 3 of 2003 and the Ethics and Anti- corruption Act, the Commission is obligated to conduct the investigations and establish the veracity of the allegations. It is further submitted that the substratum of the investigation was to preserve it for the duration of the investigations, it was necessary for the Commission to apply for a restriction and this was in relation to Section 76(2) of the LRA which provides that a restriction should endure for: a particular period; until the occurrence of a particular event or; unit a further order is made, and may prohibit or restrict all dealings or only or the dealings that do not comply with specied conditions, and the restriction shall be registered in the appropriate register. It is submitted that the Application is for a particular period, which during the endurance of the investigation which have not been concluded thus the duration of the restriction has not yet lapsed. It is submitted therefore, the allegation by the Applicant that the restriction is intended to endure for an indenite period is incorrect as the investigations are intended to culminate and inform the next cause of action, which in the event that illegalities are established would mean the ling of a civil suit to recover the land for the benet of the public. It is submitted that the Applicant had knowledge of the existence of the restriction and according to her Supporting Adavit, it is clear that they undertook a search over the suit property which disclosed that the restriction was placed by the Commission against any dealings until the conclusion of its investigations It is submitted that a copy of the search annexed at page 15 of the Applicant’s supporting adavit indicates that Applicant was aware of the restriction 9 months prior to the ling of the said suit and it is thus submitted that the Applicant’s feigned ignorance of the existence of the restriction therefore contradicts their own assertions. 40. Turning to the question on whether the said restriction should be removed or varied, it is submitted that the said restriction should not be removed or varied as it was placed for a legitimate purpose which was to preserve the suit property during the pendency of the 2nd Respondent’s investigation. It is submitted that the 2nd Respondent has been conducting the investigations, exercised its mandate independently, rationally, legally and impartially and to allow such a prayer sought to interfere with the Constitutional powers of the 2nd Respondent which includes protecting public property, without justiable cause. It is thus submitted that it is in the public interest to have the restriction maintained to allow the 2nd Respondent time to establish whether indeed the suit property is public land and that if the said restriction is lifted, the 2nd Respondent is apprehensive that the Applicant might deal with the suit property in a manner that would render the investigations and the intended recovery proceedings nugatory. 41. Consequently, it is the 2nd Respondent’s prayer that the Application be disallowed with costs to the 2nd Respondent. Part V: Questions For Determination 42. Emerging for determination - gleaning from the OS, the two Replying Adavits, and the rival written Submissions - are ve questions as follows: i. The principal question is four-fold as follows: (a) whether making inquiries from the proprietor by the Registrar under section 76(1) of the Land Registration Act, Cap 300 of the Laws of Kenya (hereinafter “LRA”) is mandatory and the consequence, if any, of failure to do so; (b) whether issuing a notice to the proprietor by the Registrar under section 76(1) of the LRA is mandatory and the consequence, if any, of failure to do so; (c) whether hearing the proprietor before registration of a restriction by the Registrar under section 76(1) of the LRA is mandatory and the consequence, if any, of failure to do so; and (d) whether issuing a notice https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 10

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to the proprietor after registration thereof by the Registrar under section 77(1) of the LRA is mandatory and the consequence, if any, of failure to do so. ii. Whether the 1st Respondent complied with the law in relation to removal of the restriction and whether the delegation of the Applicant’s Application dated 5th October 2025 to the 2nd Respondent for determination was ultra vires. Put dierently, whether a Registrar has discretionary power to elect whether to hear and determine an Application by a proprietor, seeking removal of a restriction, and whether the Registrar can lawfully so delegate determination thereof to another public body. iii. Whether there is a denite period xed for the life of a restriction. iv. 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. v. Which party should bear the costs of this suit? Part VI: Analysis of the Law; Examination of Facts; Evaluation of Evidence and Determination 43. I will analyze the ve questions, chronologically. (i) The principal question is four-fold as follows: (a) whether making inquiries from the proprietor by the Registrar under section 76(1) of the Land Registration Act, Cap 300 of the Laws of Kenya (hereinafter “LRA”) is mandatory and the consequence, if any, of failure to do so; (b) whether issuing a notice to the proprietor by the Registrar under section 76(1) of the LRA is mandatory and the consequence, if any, of failure to do so; (c) whether hearing the proprietor before registration of a restriction by the Registrar under section 76(1) of the LRA is mandatory and the consequence, if any, of failure to do so; and (d) whether issuing a notice to the proprietor after registration thereof by the Registrar under section 77(1) of the LRA is mandatory and the consequence, if any, of failure to do so 44. For purposes of contextualization, at the earliest opportunity, it is instructive to set out the meanings of operative words which will throughout this discussion recur. Section 2 of the LRA denes a “proprietor” to mean “(a) in relation to land or a lease, the person named in the register as the proprietor; and (b) in relation to a charge of land or a lease, the person named in the register of the land or lease as the person in whose favour the charge is made.” The same provision denes a “Registrar” to mean “the Chief Land Registrar, the Deputy Land Registrar, County Land Registrars and Land Registrars appointed under section 12 and 13.” The same provision denes “registration” to mean “bringing of an interest in land or lease under the provisions of the Act and includes making of an entry, note or record in the land register.” Not forgetting the meaning of a “restriction” under the same provision which means “an interest registered under section 76 and includes the Registrar’s caveat.” 45. Upon application by an interested party or suo moto, and for purposes of either compulsory acquisition or prevention of fraud or improper dealing or for any other sucient cause, the Registrar may enter an order known as a restriction in the register of a particular parcel of land, prohibiting or restricting dealings with the specied land, lease or charge. See section 76(1) of the LRA; and section 136(1) of the Registered Land Act (now repealed by LRA) which is para materia same https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 11

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to section 76(1) of LRA and which was construed in Matoya vs. Standard Chartered Bank (K) LTD & Others (2003) I EA 140, which judicial view was subsequently adopted in Mukuria James Chacha & 2 others v Land Registrar Muranga [2019] KEELC 3868 (KLR); In re Registrar of Land Kiambu County [2015] KEHC 6207 (KLR); Republic v Land Registrar & another Ex-Parte Ecobank Kenya Limited & another [2015] KEHC 7084 (KLR); Itrade Company Ltd v Mwangi & another (Miscellaneous Case 225 of 2014) [2015] KEELC 655 (KLR) (13 February 2015) (Ruling); Republic v Chief Land Registrar Ex parte Nairobi Steam Laundry Dry Cleaners 1978 Ltd 2019 KEELC 1159 (KLR); Republic v Land Registrar & another; Wamae & another (Exparte Applicants) (Environment and Land Judicial Review Case E001 of 2022) [2023] KEELC 19900 (KLR) (22 September 2023) (Judgment), et alia. 46. I will open this analysis by consigning to the past facts of common cause. Concededly, the Applicant is the proprietor of the suit property, and that a Certicate of Lease in the name of the Applicant was issued on 7th November 2014. Admittedly, on 27th June 2024, the 1st Respondent registered a restriction acting upon Application by the 2nd Respondent, vide a letter dated 21st June 2024. The restriction was expressed to last until the investigations are concluded. It is also indubitable that under section 76 of the LRA, the 1st Respondent is reposed with power to register a restriction. 47. The domain of this question is whether it was mandatory for the 1st Respondent to make inquiries from the Applicant before registration of the restriction; and whether it was mandatory for the 1st Respondent to notify the Applicant before registration of the restriction; and whether it was mandatory for the 1st Respondent to hear the Applicant before registering the restriction; whether it was mandatory for the 1st Respondent to notify the Applicant after registration of the restriction; and if it was mandatory, whether the 1st Respondent actually made inquiries from the Applicant before registration thereof; and whether the 1st Respondent actually issued a notice to the Applicant before registration thereof; and whether the 1st Respondent actually heard the Applicant before registration thereof; and whether the 1st Respondent actually issued a notice to the Applicant after registration of the restriction. And if it was mandatory to actualize the four steps and the 1st Respondent failed, what then are the consequences attendant to the failure to inquire from the Applicant before registration thereof; the failure to notify the Applicant before registration thereof; the failure to hear the Applicant before registration thereof; and the failure to notify the Applicant after registration thereof. 48. Being the primary statutory provisions, sections 76 and 77 of the LRA are germane to this question. 49. In sum, in relation to entry of a restriction, section 76(1) of the LRA makes provision for what I will hereinafter describe as pre-registration inquiries, pre-registration notice and pre-registration hearing. In extenso, section 76 stipulates that “(1) For the prevention of any fraud or improper dealing or for any other sucient 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 t, make an order (hereinafter referred to as a restriction) prohibiting or restricting dealings with any particular land, lease or charge. (2) A restriction may be expressed to endure— (a) for a particular period; (b) until the occurrence of a particular event; or (c) until a further order is made, and may prohibit or restrict all dealings or only or the dealings that do not comply with specied conditions, and the restriction shall be registered in the appropriate register. (2A) A restriction shall be registered in the register and may prohibit or restrict either all dealings in the land or only those dealings which do not comply with specied conditions.” 50. On the other hand, and in relation to registration of a restriction, section 77(1) makes provision for what I will hereinafter describe as post-registration notice. In extenso too, section 77 of LRA provides for a post-registration notice as follows: “(1) The Registrar shall give notice, in writing, of a restriction https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 12

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to the proprietor aected by the restriction. (2) An instrument that is inconsistent with a restriction shall not be registered while the restriction is still registered except by order of the Court or of the Registrar.” 51. Considering the fact that a restriction prohibits or restricts dealings by the proprietor with any particular land, lease or charge, it inevitably follows that also germane to this discussion are Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution. Article 40(2)(b) of the Constitution guarantees the right to acquisition and owning property, which right includes protection against limiting or in any way restricting the enjoyment of this right, except where it is justied under Article 24 of the Constitution. Article 47(1)&(2) of the Constitution guarantees the right to fair administrative action and particularly commands that every person has the right to administrative action which is expeditious, ecient, lawful, reasonable and procedurally fair and in this connection, if a right or fundamental freedom of a person has been or is likely to be adversely aected by administrative action, the person has the right to be given written reasons for the action. Further, in augmenting Article 47 (1) & (2) of the Constitution, section 4 of the FAAA, rmly anchored on Article 47 (1) & (2) of the Constitution, rearms that a person who can be aected by an administrative action has to be granted an opportunity to be heard and to make representations. In Judicial Service Commission vs Mbalu Mutava & Another (2015) KECA 741 (KLR), the Court of Appeal expressed a view that “Article 47(1) marks an important and transformative development of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights. The right to fair administrative action is a reection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability. The administrative actions of public ocers, state organs and other administrative bodies are now subjected by article 47(1) to the principle of constitutionality rather than to the doctrine of ultra vires from which administrative law under the common law was developed.” And in relation to obligation to hear the proprietor, Article 48 of the Constitution is germane since it guarantees the right to access justice. 52. The Applicant advances a thesis that it was mandatory for the 1st Respondent to: (i) make inquiries from the Applicant before registration of the restriction; and (ii) notify the Applicant before registration of the restriction; and (iii) hear the Applicant before registering the restriction; and (iv) notify the Applicant after registration of the restriction. Ultimately, the Applicant takes a position that since the 1st Respondent failed to: (i) make inquiries from the Applicant before registration thereof; and (ii) issue a notice to the Applicant before registration thereof; and (iii) hear the Applicant before registration thereof; and (iv) issue a notice to the Applicant after registration of the restriction, registration of the restriction was unlawful and should thus be removed by the Court. 53. The 1st Respondent’s position is diametrically opposed to the Applicant’s thesis. The 1st Respondent advances an argument that: (i) the action of making inquiries from the Applicant; (ii) issuance of a notice of intention to register a restriction under section 76(1) of the Act to the Applicant; (iii) hearing the Applicant under section 76(1) of the LRA; and (iv) issuance of a notice to the Applicant after registration of the restriction, is and remains discretionary. The 1st Respondent reasons that the law does not impose an inexible requirement for prior notice in every case, arguing that section 76(1) of the LRA grants the Registrar discretionary power in relation to the said inquiries, notices and hearings, depending on the circumstances of each case, gleaning from the phrasing “hearing such persons as the Registrar considers t” which, according to the 1st Respondent, confers discretionary power upon the Registrar in relation to inquiries, notices and hearing. In this connection, the 1st Respondent adds that where a competent investigative agency requests preservation of property pending investigation, insisting on a prior notice may defeat the very purpose of the restriction and expose the property to transfer, alienation or dissipation before investigations are concluded and that Courts have consistently https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 13

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recognized that restrictions and cautions serve a protective function and may be registered to preserve the status quo pending determination of competing interests or investigations. 54. While urging this position, the 1st Respondent made no favourable impression in my mind since in many ways than one, this thesis is awed. The discretionary power vested upon the Registrar by section 76(1) of LRA does to relate to the inquiries, notice of the intention to register a restriction, and hearing, but it rather relates to the decision whether to register a restriction or not, which invariably turns on the fulcrum of pre-registration inquiries, pre-registration notice of the intention to register a restriction and pre-registration hearing of persons who will be aected by registration of restriction and in this connection, a proprietor of course ranks top. Put dierently, whereas a decision by the Registrar to register a restriction under section 76(1) of 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. Although the language deployed in section 76(1) LRA that the power vested in the 1st Respondent is discretionary, a careful study of the parenthesis deployed in the provision, the discretionary power is limited to the decision whether to register a restriction or not, granted the fact that deploying the words “and after directing such inquiries to be made and notices to be served and hearing such persons as the Registrar considers t”, the drafters deliberately positioned the said pre-registration inquiries, pre-registration notice of the intention to register a restriction and pre-registration hearing, as conditions precedent to inform a proper and judicious exercise of the discretionary power of the Registrar to decide whether the restriction can be registered or not. My judicial inclination that the said pre-registration inquiries, preregistration notice of the intention to register a restriction, and pre-registration hearing is mandatory, is further fortied by Regulation 81(2) of the Land Registration (General) Regulations - enacted under the LRA - which specically provides in black and white the procedure to be invoked by the Registrar in registration and removal of a restriction and which deploys the mandatory language “shall” in respect to a pre-registration notice of the intention to register a restriction. It stipulates as follows: “81… (2)The Registrar shall issue, upon receipt of an Application under paragraph (1), a notice of the intention to register a restriction under section 76(1) of the Act, in Form LRA 76 set out in the Sixth Schedule.” By extension, the three-in-one manner in which Form LRA 76 is couched to amalgamate notice, inquiries and hearing, it follows that the mandatory requirement incorporated in the said Regulation 81(2) incorporates pre-registration inquiries, pre-registration notice and pre-registration hearing since it provides that “The Registrar HEREBY NOTIFIES the Proprietor and the Interested party (if any) of intention to register a restriction on the register of the above Title prohibiting any further dealings on the following grounds: (a) … (b)… (c) … You are hereby notied to appear before the Registrar on the … day of … 20 … at … AM/PM with such documents and/or representations that you deem necessary to assist in the inquiries in the matter. Please note that the Registrar will make a determination on the matter after the said date.” 55. And even if the argument that the Registrar is vested with discretion to hear “such persons as the Registrar considers t” as robustly advanced by the 1st Respondent, since it’s now a settled principle of law that discretionary power must be exercised judiciously, reasonably and in accordance with statutory and constitutional principles, and further, bearing in mind the interest conferred by registration of a proprietor under section 24 LRA and considering further the rights conferred upon a proprietor under section 25 LRA, it cannot at all be deemed judicious that decision which omits pre-registration inquiries from the proprietor, pre-registration notice to the proprietor and pre-registration hearing of the proprietor. In any event, the prescribed form LRA 76 expressly species that the said notice is addressed to the “Proprietor and Interested Party.” In other words, if a Registrar omits to make pre-registration inquiries from the proprietor, then who else has a higher interest than the proprietor from who the inquiries can be made in the context of section 76(1) LRA? Similarly, if the Registrar https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 14

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omits to issue a notice to the proprietor, then who else has a higher interest than the proprietor to whom the notice can conceivably be issued in the context of section 76(1) LRA? And if a Registrar omits to hear the proprietor, then who else has a higher interest than the proprietor to be conceivably heard in the context of section 76(1) LRA at the expense of the proprietor? Besides, the doctrine of absurdities, also known as the absurd result principle, envisages this Court to interpret the tenor and thrust of section 76(1) of the LRA in a manner that avoids absurd results. And so, in order to provide for rules of law, reason and justice; and to guard against private will or opinion, arbitrariness, vagueness, fancifulness, caprice, and even at, it’s my discernment of section 76(1) LRA that the crunch turns the words “and after directing such inquiries to be made and notices to be served and hearing such persons as the Registrar considers t” were intentionally inserted therein to render pre-registration inquiries especially from the proprietor, pre-registration notices especially to the proprietor and pre-registration hearing especially of the proprietor, a condition precedent to inform and properly ground the exercise of the said discretionary power vested in the Registrar, in considering whether to register the restriction or not. This is the only construction which is compatible with Article 47 (1) & (2) of the Constitution. In light of the foregoing, I nd the thesis advanced by the 1st Respondent that the Registrar is vested with discretionary power to elect whether to make inquiries from the registered proprietor, serve a notice upon the registered proprietor and hear the registered proprietor incompatible with the proper and holistic construction of section 76(1) LRA read in the context of Article 47 (1) & (2) of the Constitution. 56. Further, in a sure-re language, it is evident from the language deployed in section 77(1) LRA that “The Registrar shall give notice, in writing, of a restriction to the proprietor aected by the restriction” that 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. My judicial view in relation to post-registration notice is further fortied by Regulation 81(3) of the Land Registration (General) Regulations - enacted under the LRA - which too deploys the mandatory language “shall” in respect to a post-registration notice as follows: “81… (3)The Registrar shall issue, upon registering a restriction, a notice informing the proprietor of the registration of a restrictions under section 77(1) of the Act in Form LRA 77 set out in the Sixth Schedule.” 57. Upon evaluating the adavit evidence presented by the Applicant and the 1st Respondent, on a preponderance of probabilities, this Court nds and so holds that the 1st Respondent failed to comply with the law on registration of a restriction, rendering the registration and sustenance thereof void. In particular, the 1st Respondent failed to adhere to the Constitution and statute law, particularly sections 76(1) and 77(1) of LRA read with Regulation 81 of the Land Registration (General) Regulations; section 4 of the FAAA; and Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution. And in in keeping with the often-cited rendition in Benjamin Leonard Mcfoy vs. United African Company Limited (UK) [1962] AC 152 [hereinafter “the Mcfoy case”], where Lord Denning elegantly expressed the now universally accepted judicial view that “If an act is void, then it is in law a nullity. It is not only bad …and every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse”, it follows that the impugned restriction is a nullity. 58. In conclusion, this Court nds and so holds that: i. pre-registration inquiries from the proprietor under section 76(1) of the LRA read with Regulation 81(2) of the Land Registration (General) Regulations read with section 4 of the FAAA, all read in the context of Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution, is mandatory and the 1st Respondent having failed to do so, renders the registration of the restriction unlawful, void and consequently a nullity. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 15

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59. ii. pre-registration notice to the proprietor under section 76(1) of the LRA read with Regulation 81(2) of the Land Registration (General) Regulations read with section 4 of the FAAA, all read in the context of Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution, is mandatory and the 1st Respondent having failed to do so, renders the registration of the restriction unlawful, void and consequently a nullity. iii. pre-registration hearing of the proprietor under section 76(1) of the LRA read with Regulation 81(2) of the Land Registration (General) Regulations read with section 4 of the FAAA, all read in the context of Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution, is mandatory and the 1st Respondent having failed to do so, renders the registration of the restriction unlawful, void and consequently a nullity. iv. post-registration notice to the proprietor under section 77(1) of the LRA read with Regulation 81(3) of the Land Registration (General) Regulations read with section 4 of the FAAA, all read in the context of Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution, is mandatory and the 1st Respondent having failed to do so, renders the registration of the restriction unlawful, void and consequently a nullity. Faced with a similar situation, I acknowledge and embrace that my learned sisters and brothers of both the ELC and the High Court shared the same judicial inclination in Matoya vs. Standard Chartered Bank (K) LTD & others (2003) 1 EA 140, per Mwera, J. (as he then was) who construed the tenor of section 136(1) of the Registered Land Act which is para materia same to section 76(1) of LRA, and whose judicial view has subsequently been cited with approval in Mukuria James Chacha & 2 others v Land Registrar Muranga [2019] KEELC 3868 (KLR), per J.G. Kemei, J., at paragraphs 11 and 14; In re Registrar of Land Kiambu County [2015] KEHC 6207 (KLR), per G.V. Odunga, J. (as he then was), at paragraph 9; Republic v Land Registrar & another Ex-Parte Ecobank Kenya Limited & another [2015] KEHC 7084 (KLR), per G.V. Odunga, J. (as he then was), at paragraph 31; Itrade Company Ltd v Mwangi & another (Miscellaneous Case 225 of 2014) [2015] KEELC 655 (KLR) (13 February 2015) (Ruling), per MM Gitumbi, J.; Republic v Chief Land Registrar Ex parte Nairobi Steam Laundry Dry Cleaners 1978 Ltd 2019 KEELC 1159 (KLR), per LC Komingoi, J.; Republic v Land Registrar & another; Wamae & another (Exparte Applicants) (Environment and Land Judicial Review Case E001 of 2022) [2023] KEELC 19900 (KLR) (22 September 2023) (Judgment), per J.O. Olola, J.; et alia. (ii) Whether the 1st Respondent complied with the law in relation to removal of the restriction and whether the delegation of the Applicant’s Application dated 5th October 2025 to the 2nd Respondent for determination was ultra vires. Put dierently, whether a Registrar has discretionary power to elect whether to hear and determine an Application by a proprietor, seeking removal of a restriction, and whether the Registrar can lawfully so delegate determination thereof to another public body. 60. Germane to this question is section 78 of LRA which stipulates that “(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 aected by the restriction an opportunity of being heard, order the removal or variation of a restriction. (2) Upon the Application of a proprietor aected by a restriction, and upon notice to the Registrar, the Court may order a restriction to be removed, varied, or other order as it deems t, and may make an order as to costs.” 61. Similarly key in this discussion is Regulation 81(5)-(6) of the Land Registration (General) Regulations specically provides in black and white the procedure to be invoked by the Registrar in removal of a restriction. It stipulates as follows: “81. Registration of a restriction … (5)Upon receipt of an https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 16

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Application under paragraph (4), the Registrar shall pursuant to section 78(1) of the Act issue a notice of intention to remove or vary a restriction in Form LRA 76.(6)The Registrar shall issue, upon registering a variation or removal of a restriction, a notice informing the proprietor of the variation or removal of a restriction under section 78(1) of the Act in Form LRA 79 set out in the Sixth Schedule.” 62. Again, considering the fact that the right to pursue lifting of a restriction has a constitutional angle, germane to this discussion too are Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution aforediscussed. 63. My discernment of the language deployed in section 78(1) of the LRA read with Regulation 81(5)-(6) of the Land Registration (General) Regulations, all read in the context of Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution, is that whereas the Registrar enjoys discretionary power to determine whether the restriction can be lifted or not, 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. 64. It is common ground that vide an Application dated 6th October 2025, the Applicant lodged an Application for removal of the restriction and it is further facts of common cause that instead of hearing and determining the Application, the 1st Respondent referred the Application to the 2nd Respondent and thereafter neglected its duty to hear and determine it. 65. In defending this trajectory, the 1st Respondent reasoned that the referral was prudent, reasonable and lawful arguing that before considering removal of the restriction, it was necessary for the Registrar to ascertain the status of the investigations and obtain the view of the agency that requested preservation of the property and the referral was therefore a reasonable administrative step intended to facilitate informed decision making and cannot be characterized as unlawful delegation of statutory authority. 66. While this Court cannot fault the 1st Respondent for the referral which this Court chooses to construe as a notice contemplated by section 78(1) of LRA of “giving the parties aected by the restriction an opportunity of being heard”, it must disturb the mind of any well-meaning judicial mind and this Court was deeply troubled by the fact that in barefaced disregard of its duty - under section 78(1) of the LRA read with Regulation 81(5)-(6) of the Land Registration (General) Regulations, all read in the context of Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution - the 1st Respondent made no eort to set down for hearing and determination the Applicant’s Application. This conduct is not only objectionable by any standards but also indicative that the information the 1st Respondent presented to the Applicant that her Application had been referred to the 2nd Respondent was fait accompli. It is unfortunate that the Applicant was left to grapple with Hobson's choice. This lends credence to the complaint that the 1st Respondent abdicated its statutory duty and delegated it to the 2nd Respondent to be a judge in its own cause and the exercise of such non-existent power was ultra vires. 67. This Court thus nds that beyond deeming the act of sharing the Applicant’s Application as a notice to the 2nd Respondent pursuant to section 78(1) of LRA, on a balance of probabilities, after the act of giving the said notice, it is evident that the 1st Respondent did absolutely nothing to set down for hearing and determination of the Applicant’s Application dated 6th October 2025 as contemplated by section 78(1) of the LRA; Regulation 81(5)-(6) of the Land Registration (General) Regulations; and Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution afore-discussed, in agrant disregard of its constitutional and statutory duty, thereby abdicating its duty and besides, the act of unlawfully delegating its duty to determine the Application to the 2nd Respondent was ultra vires aside from constituting the 2nd Respondent as a judge in its own cause contrary to Article 50(1) of the Constitution. 68. Wherefore this Court reaches the conclusion that the 1st Respondent wilfully, deliberately and intentionally failed to comply with the law in relation to removal of the restriction – in particular, https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 17

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section 78(1) of LRA read with Regulation 81(5)-(6) of the Land Registration (General) Regulations, all read in context of Articles 40(2)(b), 47 (1) & (2) and 48 of the Constitution - and that the referral of the Applicant’s Application dated 5th October 2025 to the 2nd Respondent for determination was ultra vires, null and void and consequently a nullity per the Mcfoy rule. (iii) Whether there is a denite period xed for the life of a restriction 69. Section 76(2) stipulates that “… (2) A restriction may be expressed to endure— (a) for a particular period; (b) until the occurrence of a particular event; or (c) until a further order is made, and may prohibit or restrict all dealings or only or the dealings that do not comply with specied conditions, and the restriction shall be registered in the appropriate register.” 70. Except restrictions led in accordance with section 76(2)(a) LRA which are time-bound, the rest have denite period. Proceeding on this footing, the elephant in the room is whether the law, for all intents and purposes, contemplates a restriction ad innitum. 71. Section 58 of the Interpretation and General Provisions Act provides that “Where no time is prescribed or allowed within which anything shall be done, such thing shall be done without unreasonable delay.” 72. In this connection, 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. The Supreme Court in Communications Commission of Kenya & 5 Others v Royal Media Services Ltd & 5 Others [2014] eKLR [hereinafter “the CCK case”], observed that constitutional limitations must satisfy proportionality. The Court therefore must ask whether the limitation was lawful; whether it was necessary; whether it was proportionate; and whether there were less restrictive means. 73. It follows that the cause which led to the restriction under section 76(1) LRA – whether prevention of any fraud or improper dealing or any other sucient cause – should be pursued without unreasonable delay. 74. This Court must underscore that there is no one-shoe-ts-all when it comes to the question of unreasonable delay, since it varies from one set of unique circumstances to another. Turning to the impugned restriction, it was registered on 27th June 2024. Astoundingly, by 1st July 2026, approximately two years and one month later, the 2nd Respondent still holds a position that the said investigations have not been completed because of the need to “ensure that all relevant evidence is collected” and that the 2nd Respondent needs more time to complete. 75. While the Court is not called upon to determine ownership at this stage, it is entitled to evaluate whether continued limitation remains justied. Applying the yardstick in the CCK case, it is the considered view of this Court that although there is not denite period xed for restrictions, in instances where no time-frame is prescribed like is the case for restrictions under section 76(2)(b) & (c) of the LRA which clearly curtails a proprietor’s rights under section 24 and 25 of the LRA, the law does not and cannot at all envisage a restriction ad innitum. Although this Court nds that sucient cause existed to justify temporary preservation of the suit property pending investigations, considering the nature of investigations which is largely based on documents held by public authorities viz aviz the period which has been spent by the 2nd Respondent in investigations, this Court nds the period of approximately two years and one month adequate to have completed the investigations. Sucient cause for indenite prolongation of the restriction without progress has not been demonstrated. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 18

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(iv) 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 76. In urging this Court to sustain the restriction, the 2nd Respondent anchored this desire on public interest argument. 77. What constitutes public interest? Since it has received no denition either in the Constitution or statutes, this Court resorts to secondary sources. The Black’s Law Dictionary (Black’s Law Dictionary, Denitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern by Henry Campbell Black, M. A., 9th ed., 2009), at page 1350, denes the phrase ‘public interest’ as follows: “1. The general welfare of the public that warrants recognition and protection. 2. Something in which the public as a whole has a stake; esp., an interest that justies governmental regulation.” 78. The most signicant component of the public interest principle is the rule of law, now recognized by Article 10(2)(a) of the Constitution, which binds all State organs, State ocers, public ocers and all persons whenever either applying or interpreting the Constitution or enacting, applying or interpreting any law or making or implementing public policy decisions. Certainly, it is in the general welfare of the public and it deserves not only recognition but in addition jealous protection, that laws of the land are followed. It is not, certainly, in public interest if in the same name of public interest, laws are trampled upon in complete disregard of the rule of law embraced by Article 10 (2)(a) of the Constitution. It follows that the Constitution is a reection of the supreme public interest and its provisions must be upheld by the Courts. The Constitution embraces the rule of law and Courts must stick to that path even if the public may in any particular case desire the opposite trajectory. 79. At no time, therefore, should public interest be confused or substituted with public agitation, although they sometimes converge. Public agitation, at times, is erroneously equated with public interest. Whereas public agitation is what the public wants - notwithstanding the rm position of the Constitution and laws of the land as recognized by section 3 of the Judicature Act and Article 2 (5) & (6) of the Constitution - public interest on the hand is what the public needs, in conformity with the same Constitution and the said laws thereunder. Notably and often, public agitation comes with a deep measure of annoyance if it’s not satised with the desired action. Speaking to this distinction in Christopher Ndarathi Murungaru vs. Kenya Anti-Corruption Commission & another [2006] eKLR (hereinafter “the Murungaru case”), the Court of Appeal (Omolo, Tunoi & O’Kubasu, JJA, as they then were) did not dene what public interest constitutes but it described what it may include in the following words: “Lastly, before we leave the matter, Professor Muigai told us that their strongest point on the motion before us is the public interest. We understood him to be saying that the Kenyan public is very impatient with the fact that cases involving corruption or economic crimes hardly go on in the Courts because of Applications like the one we are dealing with. Our short answer to Professor Muigai is this. We recognize and are well aware of the fact that the public has a legitimate interest in seeing that crime, of whatever nature, is detected, prosecuted and adequately punished. But in our view, the Constitution of the Republic is a reection of the supreme public interest and its provisions must be upheld by the Courts, sometimes even to the annoyance of the public. The only institution charged with the duty to interpret the provisions of the Constitution and to enforce those provisions is the High Court and where it is permissible, with an appeal to the Court of Appeal. We have said before and we will repeat it. The Kenyan nation has chosen the path of democracy; our Constitution itself talks of what is justiable in a democratic society. Democracy is often an inecient and at times a messy system. A dictatorship, on the other hand, might be quite ecient and less messy. In a dictatorship, we could simply round up all those persons we suspect to be involved in corruption and economic crimes and simply lock them up without much ado. That is not the path Kenya has taken. It has opted for the rule https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 19

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of law and the rule of law implies due process. The Courts must stick to that path even if the public may in any particular case want a contrary thing and even if those who are mighty and powerful might ignore the Court’s decisions. Occasionally, those who have been mighty and powerful are the ones who would run to seek the protection of the Courts when circumstances have changed. The Courts must continue to give justice to all and sundry irrespective of their status or former status…” 80. And so, in Mohammed Gulam Husseign Fazal Karmali & Hyundai Motos Kenya Limited vs. Chief Magistrate’s Court Nairobi & Attorney General [2006] KEHC 3433 (KLR) (hereinafter the Fazal case), Nyamu, J. used substantially the same language in describing public interest as follows: “Although the concept of public interest has somewhat been changing with the times and evasive of a precise denition, in the context of Kenya, public interest is reected for example in securing and enforcing the fundamental rights and freedoms. It is also reected in the limitations to those rights and freedoms by law, for example in limitations that are reasonably required in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights of others, as stipulated in the Constitution.” In the Fazal case, Nyamu, J. proceeded to lay down the following test in determining whether something is in public interest or not: “Public interest is also capable of being dened by the answer to the following questions: (1) If the interest aected has a general Application; (2) Is there a collection or commercial interest and are public moneys being expended and to what extent and purpose in the interest under scrutiny; (3) Whether the public or community at large can reasonably and legitimately expect fair play in the decision making process.” 81. Superior Courts have laid a caution against the temptation of electing convenience at the expense of the rule of law. In one such cautions, Ringera, J. (as he then was) in Kinyanjui vs. Kinyanjui [1995-98] 1 EA 146 (hereinafter the “Kinyanjui case”) sounded the following caution: “For a Court of law to shirk from its constitutional duty of granting relief to a deserving suitor because of fear that the eect would be to engender serious ill will and probable violence between the parties or indeed any other consequences would be to sacrice the principle of legality and the dictates of the rule of law at the altar of convenience as would be to give succour and sustenance to all who can threaten with sucient menaces that they cannot live with and under the law.” The rendition of public interest in the Murungaru case was applied by Odunga, J. in Republic vs. Commissioner of Lands & Another Ex Parte Chetan Devji Shah & Another [2011] eKLR. Further, the judicial persuasion on public interest in the Kinyanjui case was applied by GV Odunga, J. (as he then was) in Republic vs. Director of Public Prosecution & another Ex Parte Chamanlal Vrajlal Kamani & 2 others [2015] eKLR. Similarly - like in the Murungaru case - in British American Tobacco Kenya Ltd vs. Cabinet Secretary for the Ministry of Health, Tobacco Control Board & Attorney General of Kenya [2015] KEHC 8193 (KLR), Mumbi Ngugi, J. (as she then was) also avoided dening the phrase public interest and instead described what it envisages as follows: “53. I however, also agree with the petitioner that the public interest demands that laws and processes that are laid down for the enactment of legislation and regulations to control any industry should be followed. It may, in the long term, do greater damage to the public interest to turn a blind eye on allegations of constitutional or fundamental rights violations or threat of violation, where a prima facie case has been made out, in the name of protecting the public interest.” This judicial view was adopted in Republic vs. Ministry of Health, Cabinet Secretary Ministry of Health & Attorney General Ex-parte Kennedy Amdany Langat & 14 others & Amit Kwatra & 12 others [2018] KEHC 5221 (KLR) (hereinafter “the Amdany case”), by Aburili, J. 82. In circumstances where the public and private interests are equally compelling, public interest must prevail. See paragraph 135 of the Amdany case. 83. It follows that 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 20

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the act progressed. See Republic vs. Judicial Commission of Inquiry into The Goldenberg Aair & 2 others Ex-parte George Saitoti [2006] KEHC 3533 (KLR), where Nyamu, Wendoh & Emukule, JJ. reached a conclusion that “It is also vital to mention that the Commission was appointed in the public interest. However any disregard of the relevant law defeats that public interest. Legitimate expectation is after all about fairness.” 84. Whereas this Court takes cognizance that the 2nd Respondent is a constitutional Commission established under Article 79 of the Constitution and mandated under the Ethics and Anti-Corruption Commission Act and Anti-Corruption and Economic Crimes Act to investigate corruption, economic crimes and recovery of public property, and whereas the 2nd Respondent cannot be faulted at all for making a lawful Application for the preservation of the suit property by way of a restriction, the 1st Respondent bodged and stained the process with procedural impropriety and illegalities, by contravening the mandatory requirement of section 76(1) of the LRA, having wilfully, deliberately and intentionally failed to: make pre-registration inquiries from the Applicant; issue pre-registration notice to the Applicant; undertake a pre-registration hearing of the Applicant and having further failed to issue a post-registration notice to the Applicant contrary to section 77(1) of the LRA; and nally, having failed to hear and determine the Application to lift the restriction contrary to section 78(1) of the LRA, the impugned restriction is unsustainable. The 1st Respondent deliberately attened the statutory safeguards – ingrained in sections 76(1), 77(1) and 78(1) of the LRA - laid to actualize sections 24 and 25 of LRA and the right guaranteed by Articles 47(1) & (2), 40(2)(b) and 48 of the Constitution and the fact that the 2nd Respondent is a constitutional Commission reposed with the afore-described mandate, did not discharge or exempt the 1st Respondent from the duty of independently exercising its statutory mandate and discretionary power. 85. Considering the holistic judicial approach to the purport of public interest – that the most signicant component of the public interest principle is the rule of law and considering further that there can is no greater public interest than compliance with the law by public authorities; and that it is in the general welfare of the public which deserves not only recognition but also a jealous protection that laws of the land are followed; and that it is not only in public interest if in the same name of public interest, laws are trampled upon in complete disregard of the rule of law embraced by Article 10 (2)(a) of the Constitution – all in the context of the foregoing conclusion that the registration and sustenance of the restriction against the suit property was in agrant disregard of the Applicant’s constitutional and statutory rights under sections 76(1), 77(1) and 78(1) of LRA; Regulation 81 of the Land Registration (General) Regulations; section 4 FAAA; and Articles 47 (1) & (2); 40(2)(b) and 48 of the Constitution, this Court is unpersuaded by the thesis advanced by the 2nd Respondent that it will be in public interest to sustain the restriction. 86. In any event, having found the act of registration of the impugned restriction void, it follows that it is a nullity in the tenor of the Macfoy case. In this connection, whenever a decision of a public authority is found to be a nullity, the aggrieved party is entitled to revocation or quashing of the decision ex debito justitiae. 87. Faced with a similar public interest argument in Republic v Land Registrar & another Ex-Parte Ecobank Kenya Limited & another [2015] KEHC 7084 (KLR), where the 2nd Respondent herein had lodged a similar Application for restriction with the Nyeri County Land Registrar, acting on allegations of illegal excision and alienation of land comprising compounds occupied by various government houses within Nyeri County, after which the Registrar proceeded without regard to section 136(1) of the Registered Land Act which is para materia same to section 76(1) of LRA, and in quashing the decision of registering the restriction in the said circumstances, GV Odunga, J. (as he then was) posed a rhetoric question at paragraph 32: “This does not mean that this Court promotes https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 21

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the “grabbing” of public lands. In this respect I agree with the dissenting opinion of Omolo, JA in The Town Council of Ol’kalou vs. Ng’ang’a General Store Civil Appeal No. 269 of 1997, where he expressed himself as follows:“Let me say at the outset, lest I be misunderstood, that like everyone else, I equally deplore the practice by the Commissioner of Lands of alienating public plots to persons for their private use. That practice raises serious moral issues and must, of necessity, be slow to rebu a party such as this appellant, who seeks to question the legal authority of the Commissioner of Lands to make such allocations. But having said that, it is well for the Courts to remember that we do not administer morals in the Courts. The basic function of the Courts in this country as I understand it, is to administer justice according to the laws that are there, not according to the law which we think ought to be there.” See also Republic v Land Registrar & another; Wamae & another (Exparte Applicants) (Environment and Land Judicial Review Case E001 of 2022) [2023] KEELC 19900 (KLR) (22 September 2023) (Judgment), per JO Olola, J., where, again, the 2nd Respondent herein had lodged a similar Application for restriction with the Nyeri County Land Registrar acting on allegations of illegal alienation of public land, after which the Registrar proceeded without regard to section 76(1) of the LRA and the decision too was quashed by the Court. 88. Accordingly, on a balance of probabilities, this Court is persuaded that the Applicant has made out a case for removal of the impugned restriction. The act of registration of the impugned restriction having been found to be a nullity, the Applicant is entitled to an order of removal thereof under section 78(2) of the LRA, ex debito justitiae. (v) Which party should bear the costs of this suit? 89. The law on costs as I discern it is that rst, an award of costs and interest is discretionary. Second, save where costs and interest are compromised, the Court retains the discretion thereon. See Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) eKLR, Gikonyo, J. Third, even where a suit has been compromised without including costs and interest in the compromise, the discretion of the Court aforesaid remains unscathed. See Rose Kaume & Another vs. Stephen Gitonga Mbaabu & Another [2016] eKLR, per C. Kariuki, 90. How then is this discretion exercised? Discretion is not equivalent to carte blanche. Beacons demarcating how discretion is exercised are as follows: 91. How then is this discretion exercised? Discretion is not equivalent to carte blanche. Beacons demarcating on how discretionary power should be exercised have been laid down as follows: i. First, discretion ought to be exercised with circumspection and judiciously. See Christopher Kiprotich vs. Daniel Gathua & 5 others [1976] eKLR; Mbogo and Another vs. Shah [1968] EA 93 and Mohindra vs. Mohindra (1953) 20 EACA 56. Speaking of discretion, Lord Halsbury L. C., in the case of Sharp vs. Wakeeld [1891] 64 L.T Rep. 180 Ap. Ca.173 held that: “When it is said that something is to be done within the discretion of the authorities, that thing is to be done according to the rules of reason and justice, not according to private opinion, according to law and not humour. It is not to be arbitrary, vague and fanciful but legal and regular. It must be exercised within the limit to which an honest man, competent to the discharge of his oce, ought to conne himself.” In Rooke’s case, 5 Rep. 99b (1598), adverted to in approval by Mativo, J. in Republic vs. Public Procurement Administrative Review Board & 2 others [2018] eKLR, the Court attempted a denition of discretion as follows: “Discretion is a science, not to act arbitrarily according to men’s will and private aection: so the discretion which is exercised here, is to be governed by rules of law and equity, which are to oppose, but each, in its turn, to be subservient to the other. This discretion, in some cases follows the law implicitly, in others or allays the rigour of it, but in no case does it contradict or overturn the https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 22

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grounds or principles thereof, as has been sometimes ignorantly imputed to this Court. That is a discretionary power, which neither this nor any other Court, not even the highest, acting in a judicial capacity is by the Constitution entrusted with.” 92. ii. Second, costs follow the event unless the Court nds a good cause to negate this trajectory. See Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & another [2016] eKLR). In this context, the meaning ascribed to the words “costs shall follow the event” is that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the Defendant or Respondent will bear the costs. See the seminal works of Kuloba, J. (as he then was), Judicial Hints on Civil Procedure 2nd edition at page 99; Dipchem East Africa Limited vs. Karutturi Limited (In Receivership) [2015] eKLR, per Gikonyo, J.; Cecilia Karuru Ngayu vs. Barclays Bank of Kenya & Another (2016) eKLR, per Mativo, J.; and Jasbir Singh Rai & 3 others vs. Tarcholan Singh Rai & 4 others (2014) eKLR, per Mutunga, CJ & P (as he then was) Tunoi, Ojwang and Rawal, SCJJ (as they then were) Ibrahim and Wanjala, SCJJ. iii. Third, and closely intertwined with the second is that costs should not be used to penalize the losing party but rather to compensate the successful party for the trouble invested in the proceeding or defending the suit. See Joseph Oduor Anode vs. Kenya Red Cross Society [2012] eKLR, per Odunga, J. iv. Fourth, and also closely connected with the second and third is that the purpose served by an award of costs is guided by the principle restitution in integrum i.e to reimburse the successful party the money expended in the case. See the SCOK decision in Jasbir Singh Rai & 3 others vs. Tarcholan Singh Rai & 4 others (2014) eKLR, per Mutunga, CJ & P (as he then was) Tunoi, Ojwang and Rawal, SCJJ (as they then were) Ibrahim and Wanjala, SCJJ. v. Fifth, and too connected to the second, third and fourth beacons is that a successful party should ordinarily be awarded costs unless its conduct is such that it would be denied costs or the successful issue was not attracting costs. See Orix Oil (Kenya) Ltd vs. Paul Kabeu & 2 Others (2014) eKLR; and Morgan Air Cargo Ltd vs. Everest Enterprises Ltd (2014) eKLR, Gikonyo, J. Considering the agrant disregard of the law by the 1st Respondent, this Court has found no good cause to depart from the general principle that costs follow the cause. PART VII: DISPOSITION 93. Wherefore this Court declares, orders and directs as follows: i. A declaration is hereby issued that the act of the 1st Respondent of wilfully, intentionally and deliberately failing to comply with sections 76(1), 77(1) and 78(1) of the Land Registration Act; Regulation 81 of the Land Registration (General) Regulations; section 4 of the fair Administrative Actions Act; and Articles 47 (1) & (2), 40(2)(b) and 48 of the Constitution in the registration and sustenance of the impugned restriction entered in the register of Eldoret Municipality/Block 8/38 (the suit property) on 27th June 2024, is unlawful, void and consequently a nullity. ii. A declaration is hereby issued that the continued sustenance of the impugned restriction for an indeterminate period without conclusion of investigations or institution of recovery proceedings is unreasonable, disproportionate and inconsistent with sections 76(1), 77(1) and 78(1) of the Land Registration Act; Regulation 81 of the Land Registration (General) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 23

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Regulations; section 4 of the fair Administrative Actions Act; and Articles 47 (1) & (2), 40(2) (b) and 48 of the Constitution, and thus unlawful, void and consequently a nullity. 94. iii. Pursuant to the powers vested in this Court by section 78(2) of the LRA and having found that the Applicant is entitled to an order of removal of the impugned restriction ex debito justitiae, 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. iv. The Applicant shall have costs of the OS, to be shouldered by the 1st Respondent. It is so ordered. VIRTUALLY DELIVERED, SIGNED AND DATED IN ELC ELDORET THIS 25TH SEPTEMBER 2026 …………….………… C.N. ONDIEKI JUDGE In the presence of: Advocate for the Applicant: Mr. Litoro Advocate for the 1st Respondent: No Appearance Advocate for the 2nd Respondent: Ms. Kavita Court Assistants: Ms. Chepkoech and Ms. Juma https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5767/eng@2026-09-25 24

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