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ELCAllowedMiscellaneous Application dated 13th June 2017· [2017] KEELC 716 (KLR)

In re Withdrawal of Caution by Mary Njeri Mwaura [2017] KEELC 716 (KLR)

Environment and Land Court
20 December 2017
1,029 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The applicant, Mary Njeri Mwaura, administratrix of the estate of Mwaura Muiruri (the late registered owner of LR No. Limuru/Bibirioni/T.443), filed a miscellaneous application dated 13th June 2017 seeking orders directing the Land Registrar Kiambu to withdraw a restriction/caution placed on the property by Kenya Flour Mills (1975) Ltd. She averred that the property was used in 1993 as security for a loan facility of Kshs.15,000/= which her late husband repaid, but the caution was never withdrawn; the company has not existed since about 1994, with no returns filed for over 20 years, and its offices could not be traced. The application, anchored on Sections 3A and 63(c) and (e) of the Civil Procedure Act and Section 73(1) of the Land Registration Act, was served on the Land Registrar Kiambu and on the company's director, Parshoram Natha Patel, by registered post, but neither entered appearance nor filed a response. The court applied Order 1 Rule 9 to hold that the applicant's failure to enjoin the Land Registrar as a respondent did not defeat the application since he had been served. Relying on Section 73(1) of the Land Registration Act, the court found it had discretion to remove the caution, was satisfied the loan had been repaid given the long period elapsed and the non-response of the cautioner, and allowed the application entirely in terms of prayer No.1, with costs in the cause.

Key legal issues

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01

Removal of caution under Section 73(1) of the Land Registration Act

Holding

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.

Reasoning

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.

p. 2
02

Effect of non-joinder of the Land Registrar Kiambu

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Orders directing the Land Registrar Kiambu to withdraw the Restriction and/or Caution against LR.No.Limuru/Bibirioni/T.443
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSection 63(c) and (e)
  • Civil Procedure ActSection 3A
  • Land Registration ActSection 73(1)
  • Civil Procedure RulesOrder 1 Rule 9
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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.