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ELCPartially AllowedNot stated in the ruling (suit filed in 2007; ruling on the Defendant/Applicant's motion)· [2020] KEELC 1116 (KLR)

Jane Wanjiku Mwangi & another v Nathan Ndegwa Njeru [2020] KEELC 1116 (KLR)

Environment and Land Court
1 October 2020
1,548 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

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A Kenyan landowner won removal of a caution blocking his title, but was still ordered to pay the other side's costs for not raising it earlier.

What this practically means

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Executive summary

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The Defendant/Applicant moved the Environment and Land Court by notice of motion seeking removal of a caution lodged by the 1st Plaintiff over LR No. LOC19/RWATHIA/1675 on 1 August 2006, claiming a beneficial interest. The Defendant had been adjudged the registered owner of the suit land in a judgment delivered on 31 October 2018 dismissing the Plaintiffs' case, and sought removal of the caution to enjoy the fruits of that judgment. The Respondents opposed, arguing the Court was functus officio having delivered judgment without ordering removal of the caution, that the Applicant's remedy lay in a fresh suit or before the Land Registrar under section 73 of the Land Registration Act, and that the application was a backdoor attempt to reopen the suit. Justice J G Kemei framed the key issue as whether the caution should be removed. Relying on section 73(1) of the Land Registration Act, Article 162 of the Constitution and section 2 of the ELC Act, the Court held it enjoyed original jurisdiction over land matters which could not be ousted by alternative procedure, following Wanjara v Wanjara and Christian Wafula Omusolo. Although the Defendant should ideally have counterclaimed for removal of the caution, the Respondents had been parties to the suit in which their rights were fully determined, no appeal or stay was pending, and they demonstrated no interest justifying the caution's subsistence. The Court directed the Land Registrar to remove the caution. Notably, despite succeeding, the Applicant was ordered to pay the Respondents' costs of the application because he should have pleaded the relief, the Respondents having been brought to Court unnecessarily.

Key legal issues

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01

Whether the Court has jurisdiction to remove a caution under section 73(1) of the Land Registration Act notwithstanding functus officio objections

Holding

The ELC enjoys original jurisdiction over land matters and can remove a caution under section 73(1); the objection that the Court is functus officio fails where the cautioner was a party and the judgment determined the parties' rights

Reasoning

Section 73(1) gives three routes for removing a caution: withdrawal by the cautioner, removal by the Court, or removal by the Registrar. The Court's jurisdiction flows from Article 162 of the Constitution and section 2 of the ELC Act, conferring wide and original jurisdiction over title to and rights over land. Following Wanjara v Wanjara, this original jurisdiction is not ousted by the requirement to first approach the Registrar. Where judgment has favoured the applicant and no appeal or stay is pending, a fresh suit would arrive at the same verdict, so the Court may invoke its original jurisdiction.

p. 2
02

Whether failure to plead removal of the caution as a counterclaim bars the application

Holding

While the Defendant missed the key step of including a counterclaim for removal of the caution, this did not defeat the application, as the Respondents were parties to the suit in which their rights were fully determined

Reasoning

The Court acknowledged that the proper course would have been to plead a counterclaim for removal of the caution. However, where the cautioner was a party to the suit, the rights of the parties were fully determined by the judgment, and no appeal or stay is pending, requiring a fresh suit would yield no different result. The Court invoked the overriding objective under section 3(1) of the ELC Act and section 1B of the Civil Procedure Act to do substantive justice without undue regard to technicalities, as litigation must come to an end.

p. 1
03

Whether the caution should be removed on the merits

Holding

Yes — the Respondents failed to demonstrate any interest in the suit land or justification for the caution to subsist, and there is no pending appeal or stay

Reasoning

The judgment of 31/10/2018 dismissed the Plaintiffs' case and adjudged the Defendant the registered owner, extinguishing the alleged beneficial interests claimed by the cautioner. Relying on Christian Wafula Omusolo and Kithu Mucamo, where the applicant has a decree in his favour, with no pending application to set aside the judgment and no stay in force, there is no plausible reason to refuse removal of the caution. The Respondents demonstrated no interest in the land justifying the caution's continued subsistence.

p. 2

Legal principles established

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  • The ELC may exercise its original jurisdiction under section 73(1) of the Land Registration Act to remove a caution even where removal was not pleaded, where judgment has favoured the applicant and there is no pending appeal or stay
  • Where the cautioner was a party to the suit and the rights of the parties were fully determined, no grounds remain to keep the caution on the title

Court orders

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  1. 1.The Land Registrar directed to remove the caution lodged on LR No. LOC19/RWATHIA/1675
  2. 2.The Applicant to meet the costs of the application in favour of the Respondents

Authorities

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Legislation

  • Land Registration ActSection 73(1)
  • Registered Land Act (Cap 300) (repealed)Sections 133(1) and 133(2)
  • Environment and Land Court ActSection 2; Section 3(1)
  • Civil Procedure ActSection 1B
  • Constitution of KenyaArticle 162

Cases cited (3)

  • Wanjara & 2 Others v Wanjara
    [2004] eKLR
  • Christian Wafula Omusolo & 2 others v Pauline Jerotich & another
    [2019] eKLR
  • Kithu Mucamo v Edward Kagane Kagoce
    [2019] eKLR
Jurisdiction invoked
Article 162 of the Constitution as read with Section 2 of the Environment and Land Court Act; Section 73(1) of the Land Registration Act

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, "Jane Wanjiku Mwangi & another v Nathan Ndegwa Njeru [2020] KEELC 1116 (KLR)", Case Analysis (2020). Not stated in the ruling (suit filed in 2007; ruling on the Defendant/Applicant's motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1116/eng@2020-10-01

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