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ELCDismissedNotice of Motion dated 29th January, 2019 (Kajiado Environment and Land Court)· [2019] KEELC 1591 (KLR)

Husssein Ali Dima & another v Land Registration (Kajiado Lands Office) & 2 others [2019] KEELC 1591 (KLR)

Environment and Land Court
1 October 2019
697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kajiado court refused to force the Land Registrar to register a caution over disputed land, ruling the buyers used the wrong legal procedure.

What this practically means

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Executive summary

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The Applicants moved the court by Notice of Motion dated 29th January 2019 seeking to compel the Land Registrar Kajiado to register a caution dated 17th January 2019 over plot number 664 – Residential/ Ole Kasasi Trading Centre (Current Number B66). They claimed to be bona fide purchasers for value, having bought the land from Francis S. Tameno on 20th December 2004, and asserted that the 1st Respondent's refusal to register the caution, without reasons, infringed their constitutional right to property. They noted the land was subject to pending litigation tracing from Civil Suit No. 361 of 2009 (Kajiado RM's Court) through Civil Appeal No. 142 (Machakos High Court) to Chief Magistrate's Court Case No. 337 of 2014. The 3rd Respondent opposed, contending the court lacked jurisdiction, that the application ought to have been filed in the parent file where parties and subject matter were the same, and that no refusal by the Registrar was demonstrated. The court framed a single issue: whether the Registrar should be compelled to register the caution. Relying on Sections 71(3) and (4) of the Land Registration Act, the court observed that the Applicants had not annexed the caution application allegedly rejected, that an active case over the suit land existed, and that since registering a caution is administrative, the proper remedy was judicial review or an injunction within the pending Chief Magistrate's case. The application was found premature and disallowed, with costs in the cause.

Key legal issues

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01

Whether the Land Registrar Kajiado should be compelled to register the Applicants' caution over the suit land

Holding

The application was dismissed as premature because the Applicants did not annex the caution application purportedly rejected and an active case over the same land already existed

Reasoning

The court noted the absence of the caution application said to have been rejected and the existence of pending litigation over the same parcel. The Registrar enjoys statutory discretion under Section 71(4) to reject unnecessary cautions. Because registering a caution is administrative in nature, the proper remedy was judicial review or an injunction in the pending case, not the present application.

p. 2
02

Whether the court should exercise its discretion to compel registration of the caution

Holding

The court declined, holding that Section 71(4) confers discretion on the Registrar and the Applicants had not demonstrated that refusal

Reasoning

The court applied Sections 71(3) and 71(4) of the Land Registration Act, which permit the Registrar to require a statutory declaration and to reject an unnecessary caution. No copy of the caution application was annexed, and the Registrar's discretion could not be displaced on the evidence. The Applicants' remedy lay elsewhere.

p. 2

Legal principles established

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  • The registration of a caution is an administrative act and a challenge to a Registrar's refusal to register one must be by judicial review, or by an injunction within pending litigation over the land
  • Under Section 71(4) of the Land Registration Act the Registrar has discretion to accept or reject a caution that is unnecessary or whose purpose can be effected by registration of an instrument

Court orders

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  1. 1.The application dated 29th January 2019 disallowed as premature
  2. 2.Costs in the cause

Authorities

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Legislation

  • Land Registration ActSection 71(3) and (4)

Cases cited (2)

  • Three Ways Shipping (K) V KPA
    (2012) eKLR
  • Republic Vs Kenyatta University Ex parte Applicant & 7 Others
    (2018) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction under the Land Registration Act (caution under Section 71); jurisdiction disputed by 3rd Respondent

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Husssein Ali Dima & another v Land Registration (Kajiado Lands Office) & 2 others [2019] KEELC 1591 (KLR)", Case Analysis (2019). Notice of Motion dated 29th January, 2019 (Kajiado Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1591/eng@2019-10-01

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