Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 14th August 2018 (ELC, Kajiado)· [2019] KEELC 3143 (KLR)

Lepapa Ole Moshono v Land Registrar, Kajiado & another [2019] KEELC 3143 (KLR)

Environment and Land Court
29 May 2019
COChristine Ochieng
1,571 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan court ruled that a son could not block his father's land dealings by registering cautions based only on a claimed beneficial interest in family land.

What this practically means

#

Executive summary

#
The Applicant, Lepapa Ole Moshono, registered proprietor of four parcels of land in Loitoktok, moved the Environment and Land Court at Kajiado by Notice of Motion dated 14th August 2018 under section 73(1) of the Land Registration Act, section 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking withdrawal of cautions lodged by his son, the 2nd Respondent Joseph Tipapa Ole Leepa, over the four titles. The Applicant wished to subdivide the land and distribute it among his family during his lifetime. The 2nd Respondent opposed, claiming beneficial interest as the eldest of the Applicant's sons by his late first wife, alleging the Applicant's third wife had influenced a secretive and unequal subdivision favouring her children. He sought referral to mediation. The 1st Respondent, the Land Registrar, did not participate. Framing a single issue - whether the caution should be removed - the court examined section 71 of the Land Registration Act and held that a caution may only be lodged by a person claiming an interest capable of creation by a registrable instrument. The 2nd Respondent's claim of beneficial interest fell outside section 71; he produced no affidavits from the other family members he purported to represent, and the Registrar had not convened any meeting as the law mandates. Relying on Maria Ngangi Gwako and Dinara Properties, the court found the application merited, allowed it, and directed the Registrar to withdraw the cautions. Noting the family character of the dispute, it ordered each party to bear its own costs. Judgment delivered on 29th May 2019 by Christine Ochieng, Judge.

Key legal issues

#
01

Whether a caution lodged on the basis of an alleged beneficial interest by a family member is sustainable under section 71 of the Land Registration Act

Holding

It is not; the 2nd Respondent's claim for beneficial interest does not fall within section 71 and the caution must be removed.

Reasoning

Section 71 permits cautions only by persons claiming a right to an interest in land capable of creation by a registrable instrument, entitlement to a licence, or bankruptcy petitioners. The 2nd Respondent, a son claiming beneficial interest in his father's parcels, did not fit these criteria and furnished no affidavits from other family members he claimed to represent. The Applicant confirmed proprietorship, and the Registrar had not acted on the caution as mandated. The caution was therefore unjustified.

Legal principles established

#
  • A caution can only be lodged by a person claiming a right to obtain an interest in land, lease or charge capable of creation by a registrable instrument; a claim of bare beneficial interest does not qualify under section 71 of the Land Registration Act.

Court orders

#
  1. 1.The Land Registrar, Kajiado directed to withdraw all cautions lodged by the 2nd Respondent over Title Nos. Loitoktok/Olkaria/31; Loitoktok/Kimana Tikondo/147; Loitoktok/Kimana Tikondo/1289 and Loitoktok/Ngama/1553
  2. 2.Each party to bear its own costs

Authorities

#

Legislation

  • Land Registration Actsection 73(1)
  • Land Registration Actsection 71
  • Land Registration Actsection 73 (2)-(6)
  • Civil Procedure Actsection 63(e)
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (4)

  • Maria Ngangi Gwako Vs Charles Mwenzi Ngangi
    (2014) eKLR
  • Mamut Hardware Stores Limited V Chief Land Registrar, Nairobi & Another
    (2017) eKLR
  • Milka Muthoni Wagoco V County Council of Kirinyaga & 2 other
    (2017) eKLR
  • Dinara Properties Limited V Malcedian Properties Limited & Another
    (2018) eKLR
Jurisdiction invoked
Section 73(1) of the Land Registration Act; Section 63(e) of the Civil Procedure Act; Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Lepapa Ole Moshono v Land Registrar, Kajiado & another [2019] KEELC 3143 (KLR)", Case Analysis (2019). Notice of Motion dated 14th August 2018 (ELC, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3143/eng@2019-05-29

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