William Matheka Wathome v Jackson Munyao [2001] KECA 315 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you must first remove a land caveat through the mandatory procedure before claiming damages, and only proven special damages are recoverable.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant was entitled to costs of the suit given that the respondent did not succeed on his defence and counterclaim
- 2.Whether the appellant adopted the correct procedure in seeking removal of the caveat and damages for wrongful lodgment
- 3.Whether the appellant was entitled to general damages for wrongful lodgment of the caveat under section 57(12) of the Registration of Titles Act
Key legal issues
#Correct procedure for removal of a caveat and sequencing of a damages claim
A caveatee must first invoke the mandatory procedure in section 57(6) of the Registration of Titles Act and Order 36 rule 3B of the Civil Procedure Rules for removal of the caveat before claiming damages; a plaint seeking damages prior to removal is incompetent and should be struck out
The court held that the appellant put the cart before the horse by claiming damages before removal of the caveat. The prescribed removal procedure is mandatory, and damages crystallize only upon a finding that the caveat was wrongly lodged. The learned judge should have struck out the incompetent suit, though the award of costs on the refund was proper since the appellant had not tendered the Shs.370,000/=.
Nature of compensation recoverable under section 57(12) of the Registration of Titles Act
Compensation for wrongful lodgment of a caveat under section 57(12) is limited to special damages, which must be specifically pleaded and proved; general damages are not available
The court examined the wording of section 57(12) and concluded it does not cater for general damages claims. The appellant's evidence of a lost Shs.51,000,000/= sale was flimsy, with no proof of the buyer's ability to pay or of the land's value, and no evidence that the caveat, in force only five and a half months, interfered with his right to sell.
Legal principles established
#- The procedure for removal of a caveat under section 57(6) of the Registration of Titles Act and Order 36 rule 3B of the Civil Procedure Rules is mandatory and must be exhausted before a claim for damages for wrongful lodgment is made
- Damages for wrongful lodgment of a caveat crystallize only after a finding that the caveat was wrongly lodged and should be removed; only special damages, pleaded and proved, are recoverable under section 57(12) of the Registration of Titles Act
Court orders
#- 1.Appeal dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- H.C.C.C. No. 6 of 1996 (Machakos)
- Jurisdiction invoked
- First appeal to the Court of Appeal from the High Court (Civil Appeal No. 168 of 2000)
Relief refused
#General damages for wrongful lodgment of caveat
Section 57(12) of the Registration of Titles Act provides only for compensation by way of special damages, which must be pleaded and proved; the appellant pleaded none, and there was no credible evidence the caveat interfered with his right to sell the land
Costs of the suit to the appellant
The appellant adopted the wrong procedure by claiming damages before seeking removal of the caveat through the prescribed procedure
Costs
This appeal is therefore dismissed with costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Section 57(6) of the Act provides for a simple and effective remedy for removal of a caveat. The procedure for such removal is mandated by Order 36 rule 3B of the Civil Procedure Rules. It is mandatory.
Compensation for wrongful lodgment of a caveat can only relate to special damages. The party suffering damage must plead and prove such damages.
However, at the end of the day, the learned Judge came to correct decision. This appeal is therefore dismissed with costs.
Issues in the judgment
#The judgment inconsistently records the date of filing of the suit and the date of lodgment of the caveat relative to the chronology: the suit is said to have been filed on 9th January 1996, yet the caveat was lodged on 13th October 1995 and the strike-out application is described as lodged 'soon after the close of pleadings' before the caveat narrative, suggesting chronological confusion in the text
The appellant's name is spelled inconsistently within the judgment ('Wathome' in the title, 'Mathome' in the body)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "William Matheka Wathome v Jackson Munyao [2001] KECA 315 (KLR)", Case Analysis (2001). Civil Appeal No. 168 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/315/eng@2001-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.