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ELCAllowedELC Case No. 800 of 2017· [2018] KEELC 1076 (KLR)

John Ndungu Kariithi v Kariuki Kariithi [2018] KEELC 1076 (KLR)

Environment and Land Court
2 November 2018
1,409 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 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

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Executive summary

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The Plaintiff, John Ndungu Kariithi, sued his biological brother, the Defendant Kariuki Kariithi, seeking an order compelling him to unconditionally withdraw a restriction and/or caution placed on 29th July 2016 against land parcel No. Limuru/Bibirioni/1863, plus costs. The Plaintiff averred he was the registered absolute owner, having been registered on 10th December 2013, and that the suit property was a resultant subdivision of LR No. Limuru/Bibirioni/705, owned by the parties' late father and subdivided among five brothers, the Defendant included. He alleged the Defendant lodged the caution claiming unknown beneficial interest merely because of a quarrel with the Plaintiff's wife. Though served with summons, the Defendant neither entered appearance nor filed a defence; the matter proceeded to formal proof on 26th June 2018, where the Plaintiff testified and adopted his witness statement. The court, per L. Gacheru J, found the Plaintiff the registered owner and deemed him absolute and indefeasible proprietor under Section 26(1) of the Land Registration Act, with rights further protected by Sections 24(a) and 25(1). Title could only be challenged on grounds of fraud, misrepresentation, illegality or corrupt scheme, none established. Noting that Section 71(1) permits a person claiming an interest to lodge a caution, but that the Defendant never appeared to elaborate on his claimed beneficial interest, and applying David Macharia Kinyuri v District Land Registrar, Naivasha, the court held the caution should not remain. Judgment was entered entirely in terms of prayer (a): the Defendant was ordered to unconditionally withdraw the restriction/caution, in default of which the Land Registrar Kiambu was directed to execute the removal, with costs borne by the Defendant.

Key legal issues

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01

Indefeasibility of title of a registered proprietor

Holding

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).

Reasoning

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.

p. 1
02

Removal of a caution where the Cautioner does not justify the claimed interest

Holding

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.

Reasoning

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.

p. 2
03

Standard of proof in an uncontroverted claim for removal of a caution

Holding

The Plaintiff proved his case to the required standard of balance of probabilities.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.An Order compelling the Defendant to unconditionally withdraw the placed restriction and/or caution against land parcel No. Limuru/Bibirioni/1863
  2. 2.In default of the Defendant withdrawing the restriction/caution, the Land Registrar Kiambu is directed to execute the removal
  3. 3.Costs of the suit to be borne by the Defendant

Authorities

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Legislation

  • Land Registration ActSection 26(1)(a) and (b)
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 71(1)
  • Land Registration ActSection 72(1)
  • Land Registration ActSection 73(1)

Cases cited (1)

  • David Macharia Kinyuri…Vs…District Land Registrar, Naivasha & Another
    (2017) eKLR
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

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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, "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.