In re Withdrawal of Caution by Mary Njeri Mwaura [2017] KEELC 716 (KLR)
The bottom line
#A Kenyan court can order removal of an old caution on land if the underlying debt was repaid and the cautioner is untraceable or does not object.
What this practically means
#Executive summary
#Key legal issues
#Removal of caution under Section 73(1) of the Land Registration Act
The court has discretion to remove a caution; given that the caution dated to 1982, the loan (Kshs.15,000/=) was evidently repaid, and the cautioner company no longer existed and did not oppose, the caution was removed.
The applicant, as administratrix, showed the caution secured a loan facility that was repaid and that the cautioner had been non-existent since about 1994. The company and its director were served but did not respond or dispute the repayment. The court exercised its discretion under Section 73(1) and its inherent powers under Sections 3A and 63(e) of the Civil Procedure Act to order removal so as to meet the ends of justice.
Effect of non-joinder of the Land Registrar Kiambu
The failure to enjoin the Land Registrar as a respondent did not defeat the application, since he was served and Order 1 Rule 9 permits the court to deal with the matter so far as regards the parties before it.
The applicant sought orders against the Land Registrar Kiambu but did not name him as respondent; however, the application was served on him and he chose not to appear or respond. Applying Order 1 Rule 9 of the Civil Procedure Rules, the court held that the misjoinder or non-joinder of parties cannot defeat a suit and dealt with the rights of the parties actually before it.
Legal principles established
#- A caution may be removed by order of the court under Section 73(1) of the Land Registration Act.
- Non-joinder or misjoinder of parties does not defeat a suit; the court may deal with the matter as regards parties actually before it.
Court orders
#- 1.Orders directing the Land Registrar Kiambu to withdraw the Restriction and/or Caution against LR.No.Limuru/Bibirioni/T.443
- 2.Costs in the cause
- Jurisdiction invoked
- Sections 3A and 63(c) and (e) of the Civil Procedure Act and Section 73(1) of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Withdrawal of Caution by Mary Njeri Mwaura [2017] KEELC 716 (KLR)", Case Analysis (2017). Miscellaneous Application dated 13th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/716/eng@2017-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.