Paulene Muthee and Another v Ursula Kreszenntia Menika Herkenrath and 3 Others

the judgment. 5. The 3rd Defendant opposed the application through a Notice of Preliminary Objection dated 13th July 2026 and a Replying Affidavit sworn on the same date. 6. The 3rd Defendant contends that the decree was executed when the Plaintiffs became registered proprietors of the suit property on 26th April 2024 and that there is therefore nothing further for the Court to execute in relation to the property. He consequently argues that the Court is functus officio and that any issue arising after registration of the Plaintiffs as proprietors constitutes a separate cause of action. 7. He further contends that there is no office or officer known as the “Senior Land Registrar” under the applicable land laws and that the Court cannot issue orders against a non-existent office or officer. 8. The 3rd Defendant maintains that the power to remove a restriction is vested in the Land Registrar under Sections 76 and 78(1) of the Land Registration Act. He argues that the Plaintiffs ought first to have applied to the Land Registrar for removal of the restriction and that, since no such application was made and no decision rendered, the present application is premature. He further contends that the statutory mechanism has not been exhausted and that the Land Registrar is not a party to the proceedings. 9. The 3rd Defendant also states that, following registration of the property in the Plaintiffs’ names, he reported them to the Directorate of Criminal Investigations for alleged fraud and perjury. He alleges that the Plaintiffs gave false evidence concerning the amount received from Mr. Kishore Nanji. 10. He further states that the registration of the property in favor of the Plaintiffs is the subject of an appeal and criminal justice system and that, although the criminal investigations did not result in charges, he sought a review of that decision by the Director of Public Prosecution. He contends that removal of the restriction would frustrate the ongoing process. 11. The Plaintiffs filed a Further Affidavit in response to the Preliminary Objection and Replying Affidavit. They maintain that the Court is not functus officio as the application does not seek to reopen or challenge the judgment or decree, but only seeks consequential orders to facilitate its execution. 12. They contend that this Court retains jurisdiction to determine questions relating to the execution, discharge and satisfaction of its decree. They further maintain that the restriction was registered after substantial execution of the decree and in the absence of any order staying execution, thereby interfering with execution of the decree. 13. With regard to the reference to the “Senior Land Registrar”, the Plaintiffs contend that the order is directed at the Land Registrar, Mombasa, who has custody of the relevant register. They argue that any misdescription is a mere technicality curable under Article 159(2)(d) of the Constitution. 14. The Plaintiffs further state that their advocates had engaged the Land Registrar and the The Judiciary of Kenya Doc IDENTITY: 136018305915291552725327685 Tracking Number:OOPPJ42026 2/8

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Office of the Attorney General through letters dated 23rd December 2025 and 27th March 2026 seeking removal of the restriction, but received no response. They therefore deny that the application was premature or that they had failed to exhaust the available administrative process. 15. In response to the allegations of fraud and perjury, the Plaintiffs deny the allegations and state that the matter was investigated by the Directorate of Criminal Investigations and subsequently considered by the Office of the Director of Public Prosecutions, which found no evidence sufficient to sustain criminal charges against them. They state that although the 3rd Defendant sought a review of that decision, no charges have been preferred against them. 16. The Plaintiffs further contend that the documents relied upon by the 3rd Defendant do not constitute a finding by any competent court that the judgment or decree was obtained through fraud. They maintain that the pending appeal does not operate as a stay of execution and that Section 47 of the Evidence Act does not empower the 3rd Defendant to suspend execution of the decree by registering a restriction. Plaintiffs’ submissions 17. The Plaintiffs submit that the Doctrine of functus officio only prevent a court from reopening matters concerning merits of a case which it had already finally determined. Thay relied on Section 34(1) of the Civil Procedure Act and contended that the Court retained jurisdiction to deal with subsequent matters relating to the execution, discharge or satisfaction of its decree. In support of that proposition, the Plaintiffs relied on Adiel Muriithi Philip v Thomas Maingi [2017] KECA 650 (KLR), which they stated affirmed that a trial court retains jurisdiction to deal with incidental proceedings arising after judgment, including matters concerning execution, provided that such proceedings do not amount to retrying of the case. 18. The Plaintiffs submitted that the restriction registered on 15th December 2025 arose after the decree had already been partly executed and had the practical effect of interfering with the further execution of the decree. They therefore argued that the question whether such an obstruction ought to be removed was a matter relating to the execution, discharge or satisfaction of the decree within the meaning of Section 34(1) of the Civil Procedure Act. They maintained that they were not seeking to reopen or challenge the judgment delivered on 23rd September 2019. 19. The Plaintiffs further argued that the execution of a decree is undertaken through the authority of the Court and that the lawful means by which execution may be halted is through an order for stay of execution. They submitted that no such order had been issued by either this Court or the Court of Appeal. The Applicant again relied on the case of Adiel Muriithi Philip (supra), the Plaintiffs submitted that the mere existence of a pending appeal does not, in itself, divest the trial court of jurisdiction over matters concerning execution or satisfaction of its decree. They referred to the principle under the Civil Procedure Rules that The Judiciary of Kenya Doc IDENTITY: 136018305915291552725327685 Tracking Number:OOPPJ42026 3/8

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an appeal does not operate as a stay of execution unless an appropriate order has been made by the court appealed from or by the appellate court. On that basis, they contended that the pending appeal did not render the Court functus officio or deprive it of jurisdiction to determine the issues arising from the execution of its decree. 20. The Plaintiffs further submitted that the 3rd Defendants reliance on Sections 76 and 78 of the Land Registration Act was misplaced. They argued that those provisions concern the Registrar’s administrative mandate relating to the registration and removal of restrictions, whereas the present dispute concerned an alleged obstruction of the execution of a decree, over which the Court retained jurisdiction under Section 34(1) of the Civil Procedure Act. 21. The Plaintiffs maintained that the restriction in question was not merely an ordinary restriction arising from a private land transaction. They contended that it had been registered by the 3rd Defendant, who was the judgment debtor, after the decree had already been partly executed and without any order staying execution. In their view, the effect of the restriction was to frustrate the further implementation of the decree, and an administrative entry on the register could not be used to defeat or suspend a subsisting court order. 22. Regarding the description of the intended respondent in prayer (b) of the Notice of Motion as the “Senior Land Registrar”, the Plaintiffs submitted that the reference was directed at the office responsible for the custody and administration of the relevant register, namely the Land Registrar, Mombasa. They contended that any misdescription was a procedural irregularity which did not prejudice the substantive determination of the application. Reliance was placed on Article 159(2)(d) of the Constitution and the decision in Raila Odinga & 5 others v Independent Electoral and Boundaries Commission & others [2013] eKLR, which they cited for the proposition that procedural technicalities should not be elevated above substantive justice. 23. The Plaintiffs also disputed the contention that the application was premature for failure to first seek removal of the restriction from the Land Registrar. They submitted that they had already engaged the Land Registrar and the Office of the Attorney General through letters dated 23rd December 2025 and 27th March 2026, but had received no response. They further argued that, in the circumstances, there was no requirement to exhaust an administrative process before invoking the Court’s jurisdiction under Section 34 of the Civil Procedure Act, since the complaint principally concerned interference with the execution of the Court’s own decree. 24. The Plaintiffs reiterated that an appeal does not, without an order of stay, operate as a stay of execution. They submitted that a successful litigant is ordinarily entitled to enjoy the fruits of the judgment and that the 3rd Defendant had not obtained an order staying execution from either this Court or the Court of Appeal. The Plaintiffs therefore argued that the 3rd Defendant could not lawfully achieve, through registration of a restriction, what had not been obtained through the prescribed procedure for stay of execution. The Judiciary of Kenya Doc IDENTITY: 136018305915291552725327685 Tracking Number:OOPPJ42026 4/8

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25. With respect to the allegations of fraud and perjury, the Plaintiffs submitted that fraud is a serious allegation which must be specifically pleaded and strictly proved. They relied on Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR. 26. Finally, the Plaintiffs argued that Section 47 of the Evidence Act cannot be invoked by a judgment debtor to suspend execution of a valid and subsisting decree. The Plaintiffs consequently urged the Court to dismiss the 3rd Defendant’s Preliminary Objection and allow the Notice of Motion dated 21st April 2026 as prayed. 3rd Defendants Submissions 27. The 3rd Defendant submitted that the issue of the restriction did not arise in the original proceedings and that the decree contained no order for its removal. Reliance was placed on Order 21 Rule 3(3) of the Civil Procedure Rules, which was said to bar alteration or addition to a judgment once signed, except as provided under Section 99 of the Civil Procedure Act or through review. The Defendant therefore maintained that the Plaintiffs’ application amounted to an attempt to reopen and vary a concluded and satisfied judgment. 28. It was further submitted that Section 34 of the Civil Procedure Act was inapplicable since the restriction was registered after execution and satisfaction of the decree. According to the 3rd Defendant, the Court had exhausted its jurisdiction upon completion of the transfer and registration, and any subsequent dispute concerning the restriction constituted a fresh cause of action. The Court was consequently functus officio. 29. The 3rd Defendant also relied on Section 47 of the Evidence Act, contending that the restriction was intended to preserve the suit property pending determination of allegations that the judgment had been procured through fraud or collusion. It was alleged that the Plaintiffs had not paid the purchase price and had instead treated funds received pursuant to a separate High Court judgment and a Specific Power of Attorney as their own. 30. The 3rd Defendant submitted that Sections 76 and 78 of the Land Registration Act confer quasi-judicial functions upon the Land Registrar, who is required to hear the affected parties before making a decision. It was argued that Section 78(1) requires a proprietor to first apply to the Registrar for removal or variation of a restriction, with recourse to the Court under Section 78(2) and, where applicable, Section 86(1) following the Registrar’s decision. The Plaintiffs were therefore said to have failed to exhaust the statutory remedy, rendering the application premature and incompetent. 31. The Defendant further contended that the Plaintiffs’ letters dated 23rd December 2025 and 27th March 2026 did not constitute a proper application under Form LRA 78 and could not properly invoke the Registrar’s jurisdiction. The threat of contempt proceedings was similarly challenged on the basis that neither the decree nor any subsequent order directed the Registrar to remove the restriction. 32. It was also submitted that the Court could not properly issue orders against the Land Registrar or the Attorney-General, who were not parties to the suit or the decree and whose The Judiciary of Kenya Doc IDENTITY: 136018305915291552725327685 Tracking Number:OOPPJ42026 5/8

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right to a fair hearing under Articles 25(c) and 50(1) of the Constitution would thereby be The Judiciary of Kenya Doc IDENTITY: 136018305915291552725327685 Tracking Number:OOPPJ42026 6/8

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implicated. Service of the application, it was argued, did not make them parties to the proceedings. 33. The 3rd Defendant distinguished Adiel Muriithi Philip v Thomas Maingi, maintaining that the circumstances of that case were different because there remained an issue relating to satisfaction of the decree, whereas in the present case the transfer had already been completed and the Plaintiffs registered as proprietors before the restriction was entered. 34. The 3rd Defendant consequently urged the Court to uphold the Preliminary Objection dated 13th July 2026, find that it was functus officio and that the Plaintiffs had failed to exhaust the remedy under Section 78(1) of the Land Registration Act, and dismiss the Notice of Motion dated 21st April 2026 with costs. Analysis and determination 35. The court has considered the Notice of Motion dated 2w1dt April 2026, the Preliminary Objection, Replying affidavit, further affidavit together with submissions thereto. The issue for determination is whether the Applicant has established sufficient reason for removal of the restriction registered against the suit property. 36. The Applicants case is that judgment was delivered on 23rd September 2019 in their favor and pursuant to the decree, they were registered as the proprietors and issued with a provisional certificate of title on 26th April 2024. They contend that a restriction was registered against the property by the 3rd Defendant on 15th December 2025. The Plaintiffs maintain that there is no order for stay of execution and that the 3rd Defendant has not demonstrated any lawful basis for the continued restriction. They therefore seek its removal. 37. The 3rd Defendant on the other hand contends that the decree had already been fully executed upon the registration of the Applicants as proprietors. He therefore argues that the court is functus officio and the restriction constitutes a fresh matter. He further contends that the restriction was registered to preserve the property pending investigations and further proceedings on allegation of fraud. 38. Section 76 of the Land Registration Act provides that; (1)For the purposes of compulsory acquisition the prevention of any fraud or improper dealing or for any other sufficient cause, the Registrar may, either with or without the application of any person interested in the land, lease or charge, and after directing such inquiries to be made and notices to be served and hearing such persons as the Registrar considers fit, make an order (hereinafter referred to as a restriction) prohibiting or restricting dealings with any particular land, lease or charge 39. Section 77 on the other hand requires the registrar to issue a notice prior to registering a restriction. It provides; (1) The Registrar shall give notice, in writing, of a restriction to the proprietor affected by the restriction 40. In the present case, the 3rd Defendant states hat the restriction was intended to The Judiciary of Kenya Doc IDENTITY: 136018305915291552725327685 Tracking Number:OOPPJ42026 7/8

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preserve the property pending an Appeal and further proceedings arising from allegations of fraud. He has however not demonstrated the particular appeal that is pending or any order from court directing that the suit property be preserved. An Appeal by itself does not operate as stay. Even if the pendency of an appeal was established it would not by itself explain why a restriction should continue in the absence of an order for stay. No criminal charge or finding of fraud has been demonstrated to this court by the 3rd Defendant, it therefore remains an allegation and cannot constitute sufficient justification for restricting a registered proprietors title. 41. Further Section 77(1) above places an express obligation upon the registrar to give a written notice of a restriction to the affected proprietor. In Ezekiel Misango Mutisya v National Lands Commission & 6 others [2014] KEHC 4500 (KLR) the court stated ”It is also clear that before the Registrar registers a restriction on any land he must direct such inquiries to be made and notices to be served and hear such persons as he considers fit.” This position was confirmed in Matoya vs. Standard Chartered Bank (K) Ltd & Others [2003] 1 EA 140 where it was held that: “A restriction is ordered to prevent any fraud or improper dealing with a given parcel of land and the land registrar does this whether on its own motion or if so asked by way of an application by the person interested in that land but before ordering the restriction the registrar is bound by law to make inquiries, send out notices and hear all those other people he may think fit first and he is not to move by whim, caprice or whatever influence personal or otherwise just to impose a restriction since he has a duty to inquire and be satisfied that his duty to order restriction is not hurting a person who was not heard and that indeed the restriction is in general good that frauds and other improper dealings are prevented.” 42. The issuance of the notice was material was material given that the Applicant was already the registered owner of the suit property, yet its issuance has not been shown to court, any inquiry undertaken in relation to the restriction. 43. As regards the court being functus officio, it is the 3rd Defendants case that the restriction was registered from an appeal from these proceedings. It is therefore this court’s finding that the 3rd Defendant having relied on the appeal emanating from these proceedings, as basis for registration of the restriction cannot now invoke functus officio to prevent the Applicant from challenging its registration. 44. Section 78(2) of the Land Registration Act expressly provides for removal of a caution of a restriction by a party affected by the restriction upon notice to the Registrar. In Cheplaiti v Land Registrar & another [2026] KEELC 906 (KLR) the court acknowledged the provision of Section 78 of the Land Registration Act as an avenue for removal or variation of a restriction. 45. In view of the foregoing, the court finds that the reasons advanced for maintaining the restriction are insufficient. Consequently, the Preliminary Objection is dismissed. The Notice of Motion dated 21st April 2026 is allowed. Costs of the Application to the Applicant. The Judiciary of Kenya Doc IDENTITY: 136018305915291552725327685 Tracking Number:OOPPJ42026 8/8

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46. Orders accordingly. SIGNED BY/FOR: ★ TH E JUDICIAR Y O F KENY A ★ HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Land Court Environment and Land Court Date: 2026-09-24 12:35:56 The Judiciary of Kenya Doc IDENTITY: 136018305915291552725327685 Tracking Number:OOPPJ42026 9/8

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