National Council of Churches of Kenya v Chief Land Registrar & Land Registrar Nyeri [2017] KEELC 3460 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYERI

MISC. ELC NO. 16 OF 2016

THE NATIONAL COUNCIL OF CHURCHES OF KENYA..........................APPLICANT

VERSUS

THE CHIEF LAND REGISTRAR ......................................................1ST RESPONDENT

THE LAND REGISTRAR, NYERI.....................................................2ND RESPONDENT

RULING

1. The Notice of Motion dated 29th June 2016,  seeks  orders compelling the respondents to remove the restriction lodged against Nyeri/Municipality Block 1/1280(hereafter referred to as the suit property) and  costs of the application.

2. The application is premised on the grounds on the  face  of the application and is supported by affidavit sworn by the applicant’s General Secretary and Chief Executive Officer, Reverend Canon Peter Karanja on 29th June,  2016. He deponed that the applicant is the registered owner of the suit property; that the respondents registered  a restriction against the suit property on 8th February, 2012 at the instigation of the Ethics and Anti-Corruption  Commission (EACC) to enable it  conclude  investigations.

3. The Applicant has written several letters to the 2nd  respondent to remove the restriction (21st May, 2015 and  12th October, 2015) but there has been no response or action taken by the respondents.

4. Further the applicant has not received any report of the investigations by EACC. It is their contention, that this is a breach of its constitutional right to property under Article 40 of the Constitution and the right to fair  administrative action under Article 47 of the Constitution.

5. The application is not opposed. From the affidavit of  service sworn on 2nd November, 2016 by Peter Gakui Mugo, a licensed process server, it appears only the 2nd respondent was served with the Notice of Motion on 28th  November 2016. There is no  proof that the 1st respondent  was served.

6. EACC who instigated the registration of the restriction  on  8th February, 2012 are also not parties in this matter. It is my considered view that the restriction against dealings with the suit property placed by the EACC should not be  removed without EACC been given an opportunity to  explain why after placing a restriction on the title four years ago to carry out to investigations, the restriction should  not be removed.

7. In the interest of justice, I order that EACC be enjoined in these proceedings under Order 1 Rule 10 of the Civil Procedure Rules having been found to be a necessary party in assisting the court to conclusively deal with the application before it.  Costs of the application shall be in  the cause.

Dated, signed and delivered in open court at Nyeri this  14th day of February, 2017.

L N WAITHAKA

JUDGE

In the presence of:

Mr. King'ori h/b for Mr. Juma for the plaintiff

N/A for the respondents

Court clerk - Esther