Derrick Kamau Wamatu v Felistus Nungari Njoroge [2018] KEELC 699 (KLR)
The bottom line
#Kenya's Environment and Land Court confirmed that a registered landowner's title wins, removing a baseless caution and ordering eviction with 45 days' notice.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff is the registered proprietor of the suit property entitled to the rights of a proprietor
Yes - the Plaintiff was registered on 7th May 2008 after the Grant of Probate and his title is protected under Sections 24, 25 and 26(1) of the Land Registration Act.
The court found the Plaintiff was registered as proprietor on 7th May 2008 following confirmation of the grant of probate. Section 26(1) of the Land Registration Act renders his title prima facie and indefeasible, subject only to fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme. No such challenge was made as the Defendant never entered appearance. His rights include exclusive use, possession and enjoyment without interference.
Whether the caution registered by the Defendant's son should be removed
Yes - the cautioner's application for revocation of the grant in the succession matter was dismissed, so the caution serves no purpose and must be removed.
Under Section 71 of the Land Registration Act only a person claiming a right or interest capable of registration may lodge a caution. The cautioner had lodged it pending an application for revocation of the grant in the succession cause, which was dismissed and the Plaintiff's entitlement upheld. Since neither the cautioner nor the Registrar removed the caution, the Court directed its removal under Section 73(1), as the Defendant did not appear to justify it.
Whether the averments in the Plaint were admitted by the Defendant for failure to file a defence
Yes - under Order 2 Rule 11, allegations of fact not traversed are deemed admitted, entitling the Plaintiff to all prayers sought.
The Defendant neither entered appearance nor filed a statement of defence and did not participate in the proceedings. Relying on Order 2 Rule 11 of the Civil Procedure Rules, the court held that untraversed allegations of fact are deemed admitted. The Plaintiff's evidence, including the Grant of Probate and confirmation of grant, went uncontroverted, and his case was proved on a balance of probabilities.
Legal principles established
#- A registered proprietor is the absolute and indefeasible owner of the land, subject only to challenge on grounds of fraud, misrepresentation, or illegally, unprocedurally or corruptly acquired title.
- Registration of a person as proprietor vests absolute ownership of the land together with all rights and privileges appurtenant thereto.
- A caution can only be lodged and maintained on a parcel of land by a party who can demonstrate a right or interest in the land, lease or charge; otherwise it should be removed.
Court orders
#- 1.Judgment entered for the Plaintiff against the Defendant in terms of prayer No.(a), (b) & (c) of the Plaint
- 2.Removal of the caution registered against land parcel Ngenda/Githunguchu/T.401
- 3.Eviction of the Defendant, her agents, servants, dependants and tenants from the suit property
- 4.Plaintiff to give the Defendant notice of 45 days from the date of judgment for vacant possession, in default eviction to issue
- 5.Costs of the suit to the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land parcel Ngenda/Githunguchu/T.401 (no specific provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Derrick Kamau Wamatu v Felistus Nungari Njoroge [2018] KEELC 699 (KLR)", Case Analysis (2018). ELC 372 of 2015 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/699/eng@2018-11-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.