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ELCAllowedOriginating Summons dated 5th April 2017· [2018] KEELC 805 (KLR)

Joseph Waitiruka Kamau v Gabriel Ngariuya Mwaniki & another [2018] KEELC 805 (KLR)

Environment and Land Court
16 November 2018
1,597 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 removed a caution on land because the person who placed it had no legal interest in the property.

What this practically means

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Executive summary

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This was an unopposed Originating Summons dated 5th April 2017, brought under Order 37 Rules 4 and 8 of the Civil Procedure Rules, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Section 73(1) of the Land Registration Act, by Joseph Waitiruka Kamau alias Joseph Ngochi Mwaniki against the 1st Respondent, who had lodged a caution over land parcels Ngenda/Nyamangára/883 and Ngenda/Mitero/T.51, and the 2nd Respondent, the Land Registrar, who refused to lift the caution without a court order. The Applicant sought an order directing removal of the caution and costs. He relied on his title deeds and on prior judgments of Muchelule J (25th January 2011) and Kimondo J (review on 31st July 2012), which declared him absolute owner and ordered the 1st Respondent to vacate; the 1st Respondent was subsequently evicted and did not appeal. The court framed two issues: whether the Applicant is the absolute registered proprietor, and whether the 1st Respondent has any interest capable of supporting a caution. Applying Sections 24(a), 25(1), 26, 71 and 73(1) of the Land Registration Act, and the decisions in Maria Ngagi Gwako and Milkah Muthoni Wagoco, the court held that the Applicant had proved his case on a balance of probabilities, that the cautioner had no demonstrable interest, and that the court had discretion to remove the caution. Judgment was entered for the Applicant as sought in prayers (a) and (b), with costs.

Key legal issues

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01

Whether the Applicant is the absolute proprietor and registered owner of the two parcels of land

Holding

The Court found that the Applicant is the absolute and indefeasible owner, evidenced by title deeds and un-upset judgments of Muchelule J and Kimondo J

Reasoning

The Applicant produced copies of title deeds and judgments of two ELC judges declaring him absolute owner and ordering eviction of the 1st Respondent. There was no evidence those orders were upset on appeal. As proprietor, his rights are protected under Sections 24(a) and 25(1) of the Land Registration Act, and he cannot enjoy them with a caution on the land.

p. 2
02

Whether the 1st Respondent has any interest, beneficial or otherwise, justifying the caution

Holding

The 1st Respondent has no interest; his claim was dismissed and he failed to demonstrate any interest, so the caution should be removed

Reasoning

The question of the 1st Respondent's interest was determined in ELC No. 146 of 2007, which declared the Applicant absolute owner. Under Section 71 of the Land Registration Act only a person with a claim to an interest may lodge a caution. The 1st Respondent did not appeal and failed to demonstrate any interest, aligning with Maria Ngagi Gwako where a caution was removed after respondents failed to show interest.

p. 2
03

Whether the Court has power to remove the caution

Holding

The Court has discretion under Section 73(1) of the Land Registration Act to remove a caution

Reasoning

Section 73(1) provides that a caution may be removed by the Cautioner, the Registrar or the Court. The caution remained in place even after judgments were entered against the 1st Respondent, who neither removed it nor had it removed by the Registrar. The Court therefore exercised its discretion to remove it.

p. 3

Legal principles established

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  • 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
  • A certificate of title is prima facie evidence that the person named as proprietor is the absolute and indefeasible owner

Court orders

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  1. 1.Judgment entered for the Applicant against the Respondents as sought in prayers (a) and (b) of the Originating Summons, namely removal/lifting of the caution placed by the 1st Respondent on Ngenda/Nyamangára/883 and Ngenda/Mitero/T.51
  2. 2.Costs of the proceedings awarded to the Applicant
Jurisdiction invoked
Order 37 Rules 4 and 8 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; 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, "Joseph Waitiruka Kamau v Gabriel Ngariuya Mwaniki & another [2018] KEELC 805 (KLR)", Case Analysis (2018). Originating Summons dated 5th April 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/805/eng@2018-11-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.