John Ndungu Kariithi v Kariuki Kariithi [2018] KEELC 1076 (KLR)
The bottom line
#A Kenyan court ordered a brother to remove a caution on family land, confirming that registered owners' titles are protected unless fraud is proven.
What this practically means
#Executive summary
#Key legal issues
#Indefeasibility of title of a registered proprietor
The Plaintiff, registered on 10th December 2013, is deemed the absolute and indefeasible owner under Section 26(1) of the Land Registration Act, protected also by Sections 24(a) and 25(1).
The court relied on Section 26(1) of the Land Registration Act, which provides that a certificate of title is prima facie evidence that the named proprietor is the absolute and indefeasible owner, subject only to challenge on the grounds of fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme. No such challenge was established since the Defendant did not appear.
Removal of a caution where the Cautioner does not justify the claimed interest
The Defendant, as Cautioner claiming beneficial interest, did not appear to elaborate on or prove the interest; the Caution therefore cannot remain in place and must be withdrawn.
Section 71(1) of the Land Registration Act allows a person claiming an interest to lodge a caution, and Section 73(1) allows its withdrawal by the Cautioner or removal by court or Registrar order. The Defendant lodged a caution claiming beneficial interest but did not enter appearance or give evidence to elaborate on that interest. The Plaintiff also alleged he never received the statutory notice under Section 72(1). With no evidence controverting the Plaintiff's ownership or establishing fraud, the court found no reason for the caution to remain.
Standard of proof in an uncontroverted claim for removal of a caution
The Plaintiff proved his case to the required standard of balance of probabilities.
In formal proof proceedings where the Defendant, though served with summons, neither entered appearance nor filed a defence, the Plaintiff testified and adopted his witness statement. The court evaluated the evidence and exhibits and found the Plaintiff had discharged the burden of proving his claim on a balance of probabilities, justifying judgment in terms of prayer (a) of the Plaint.
Legal principles established
#- A registered proprietor is deemed the absolute and indefeasible owner of the property under Section 26(1) of the Land Registration Act, subject only to challenge on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme
- Where a Cautioner fails to appear in court to justify the interest claimed under a caution, the court may order its removal as there is no reason for it to remain on the register
Court orders
#- 1.An Order compelling the Defendant to unconditionally withdraw the placed restriction and/or caution against land parcel No. Limuru/Bibirioni/1863
- 2.In default of the Defendant withdrawing the restriction/caution, the Land Registrar Kiambu is directed to execute the removal
- 3.Costs of the suit to be borne by the Defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to land registration, cautions and restrictions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Ndungu Kariithi v Kariuki Kariithi [2018] KEELC 1076 (KLR)", Case Analysis (2018). ELC Case No. 800 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1076/eng@2018-11-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.