Jane Wanjiku Mwangi & another v Nathan Ndegwa Njeru [2020] KEELC 1116 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Court has jurisdiction to remove a caution under section 73(1) of the Land Registration Act notwithstanding functus officio objections
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
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.
Whether failure to plead removal of the caution as a counterclaim bars the application
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
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.
Whether the caution should be removed on the merits
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
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.
Legal principles established
#- 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
#- 1.The Land Registrar directed to remove the caution lodged on LR No. LOC19/RWATHIA/1675
- 2.The Applicant to meet the costs of the application in favour of the Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.