Joshua Kaburu Kimathi & another v Evangeline Kagweni [2021] KEELC 481 (KLR)
The bottom line
#The Environment and Land Court in Meru confirmed that a spouse's caution protecting family land stays in place unless buyers prove it was wrongly filed.
What this practically means
#Executive summary
#Key legal issues
#Whether the cautions lodged by the respondent over L.R. Abothuguchi/Kariene/3707 and 3709 were justified
The cautions were justified: the respondent, as spouse of the registered owner with overriding interests under Sections 71, 25 and 28 of the Land Registration Act and Article 45 of the Constitution, had a protectable interest given the absence of her spousal consent
PW1 and PW2 admitted the respondent and her children were not consulted in the sale. The land was ancestral, having devolved through a succession cause, and the respondent was in occupation. Section 71 of the Land Registration Act read with Article 45 of the Constitution protected her spousal rights, while Sections 25 and 28 preserve overriding interests not noted on the register. The appellants also failed to show they first invoked Section 73(2) for removal before the registrar.
Whether the respondent proved her counterclaim founded on spousal, family and customary trust
Yes, on a balance of probability; the trial court's judgment on the counterclaim was correct and confirmed
The respondent pleaded beneficial interest, fraud, lack of spousal consent and trust, and led evidence tracing the root of title through her father-in-law and brother-in-law to the 2nd appellant. The sale was conducted secretly and the purchase price not fully paid. Following Salesio M'itonga and George Mbiti Kiebia, a customary trust is proved by evidence and does not require occupation. The appellants' reply did not specifically deny key averments.
Whether the appellants were entitled to the removal of the cautions by the court
No; the appellants did not demonstrate they had first invoked Section 73(2) of the Land Registration Act, and a party seeking removal of a caution bears the burden of justifying its removal
Sections 71-75 of the Land Registration Act govern cautions; removal power lies with both the registrar and the court. The appellants produced no evidence that they invoked Section 73(2) as the first port of call. Under the Chemjor and Gwako authorities, the burden lay on the appellants to show the respondent had no right to caution and that the caution should be lifted, which they failed to discharge.
Legal principles established
#- A first appeal court must review, reassess and rehearse the pleadings, evidence and law and come to its own conclusions while bearing in mind the trial court's advantage of seeing and hearing witnesses
- A spouse in occupation of matrimonial/family land may lodge a caution under Section 71 of the Land Registration Act based on overriding interests
- A party seeking removal of a caution must show on a balance of probabilities why the cautioner had no right to lodge it and why it should be removed
- Possession or occupation is not a prerequisite to proving a customary trust
- A trust is a question of fact to be proved by evidence
Court orders
#- 1.The trial court's decision dismissing the appellants' suit and entering judgment on the respondent's counterclaim is confirmed
- 2.The appeal is dismissed with costs
- On appeal from
- Chief Magistrate's Court (Meru)
- Meru CMCC No. 322 of 2013
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (appeal dated 16.12.2020); underlying dispute under the Land Registration Act, Matrimonial Property Act and Article 45 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joshua Kaburu Kimathi & another v Evangeline Kagweni [2021] KEELC 481 (KLR)", Case Analysis (2021). Not stated in the judgment as extracted (appeal dated 16.12.2020 against Meru CMCC No. 322 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/481/eng@2021-12-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.