Muluka Mutungu Kithuku v Dorcas Mutemi Zakayo & another [2018] KEELC 822 (KLR)
The bottom line
#A Makueni landowner lost his bid to remove a caution because he skipped the required appeal to the Chief Land Registrar and failed to disprove his relative's customary claim.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Respondent has a beneficial interest in the suit property under Kamba Customary Law
The court found the 1st Respondent had beneficial interest, her mother having been married to the Applicant's father under Kamba customary law, an averment the Applicant did not controvert
The Applicant challenged the 1st Respondent's claimed relationship on the basis that she never produced her identity card or birth certificate before the Land Registrar or the court. The 1st Respondent relied on uncontroverted averments in paragraphs 7 and 8 of her replying affidavit that her mother was married to the Applicant under Kamba Customary Law, creating a customary trust/beneficial interest. The court was satisfied on those uncontroverted averments and also noted the Land Registrar had already found such an interest.
Whether the doctrine of exhaustion barred the Applicant's suit
The suit was premature because the Applicant did not appeal the Land Registrar's decision to the Chief Land Registrar
The Land Registrar had, on 16th September 2014, held that the 1st Respondent had beneficial interest in the suit parcel and declined to remove the caution. Instead of appealing that decision to the Chief Land Registrar as the law allowed, the Applicant came straight to the Environment and Land Court. The court held that the doctrine of exhaustion applied, rendering the suit premature and an abuse of the court process on that account.
Whether the caution lodged by the 1st Respondent should be removed
The caution was properly lodged and should not be removed
Section 71(1) of the Land Registration Act, 2012 permits a person claiming a right to obtain an interest in land to lodge a caution. Having found the 1st Respondent had beneficial interest in the suit property, the court held it would be unfair to order the removal of the caution she had lodged to protect that interest.
Who should bear the costs of the application
Costs followed the event and were awarded to the 1st Respondent
The Applicant failed to prove both that the 1st Respondent lacked beneficial interest and that the caution should be removed. Applying the principle that costs follow the event, the court held the Applicant himself should bear the costs of the suit.
Legal principles established
#- A party who disputes a decision of the Land Registrar must exhaust the available statutory appeal avenues, such as appeal to the Chief Land Registrar, before approaching the court
Court orders
#- 1.The originating summons is dismissed with costs to the 1st Respondent
- 2.The Applicant to bear the costs of the proceedings
- 3.The caution lodged by the 1st Respondent against title number Kathonzweni/Kitise/1631 remains in place (no order for its removal)
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to title and cautions on registered land (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muluka Mutungu Kithuku v Dorcas Mutemi Zakayo & another [2018] KEELC 822 (KLR)", Case Analysis (2018). ELC NO. 271 OF 2017 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/822/eng@2018-10-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.