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ELCDismissedELC Appeal No. 11 of 2020· [2022] KEELC 521 (KLR)

Bryson Mangla Agot v Priscillah Nthoki Mutulili & another [2022] KEELC 521 (KLR)

Environment and Land Court
23 March 2022
3,683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed you can only keep a caution on someone else's land if you have a genuine legal right to it.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Machakos against a ruling of the Magistrate's Court (Hon. D. Orimba, SPM) delivered on 14 October 2020 in Kangundo ELC Misc. App. No. 3 of 2020. The respondents had successfully sought, under Section 73(1) of the Land Registration Act, removal of a caution the appellant (a former pastor) had registered over land parcel Donyo Sabuk/Komarock Block 1/14027 and issuance of a title to Redeemed Gospel Church Inc. Registered Trustees. The appellant, appearing in person, filed abusive pleadings and threatened to petition the Judicial Service Commission for the judge's removal if the appeal were decided against him; the court condemned this conduct but proceeded to decide the appeal on the law. The appellant argued the court lacked 'personal jurisdiction', that the respondent's submissions filed out of time should be expunged, and that the miscellaneous application should have been consolidated with ELC No. 138 of 2019. The court held it had jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; refused to expunge the submissions absent prejudice; and found the two suits involved different parties, causes of action, properties, issues and prayers. On the merits, applying Section 73(1) and Section 71 of the Land Registration Act and the principle that a cautioner bears the onus of justifying a caution, the court found the appellant had admitted in his own affidavit that the church purchased the property and reimbursed him, leaving no basis for the caution. The appeal was dismissed with costs to the respondents.

Key legal issues

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01

Jurisdiction of the ELC to hear the appeal

Holding

The court has jurisdiction under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act; jurisdiction is not personal

Reasoning

The Appellant argued the court lacked 'personal jurisdiction' because a predecessor judge had made a consent status quo order. The court held the only prior order was a consent status quo order, not a decision on the merits, and its appellate jurisdiction derives from the Constitution and the ELC Act, not from any individual judge.

p. 3
02

Removal of a caution under Section 73(1) of the Land Registration Act

Holding

The caution was properly removed because the Appellant had no bona fide legal right to maintain it

Reasoning

Section 71 permits a caution only by a person claiming a right to obtain an interest in land. The Appellant admitted in his own affidavit that he was reimbursed the purchase consideration by the church and that the property belongs to the church; hence he had no plausible reason to have the caution subsist on the registered proprietor's land.

p. 4
03

Separate hearing of ELC Misc. App. No. 3 of 2020 and ELC No. 138 of 2019

Holding

The trial court properly determined the matters separately as they involved different parties, causes of action, properties, issues and prayers

Reasoning

The court compared the parties and prayers in both suits, noted that the two plaintiffs in the Miscellaneous Application were not parties to ELC 138 of 2019, and that no application for consolidation was ever made in the lower court. No prejudice from separation was demonstrated.

p. 4

Legal principles established

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  • A caution can only subsist on another's title if the cautioner has a legal right, contractual or otherwise, in respect of the title
  • The onus is upon the cautioner to justify the lodging of a caution and the need for it to remain in place
  • On a first appeal the court re-evaluates the evidence and reaches its own independent conclusion

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents
  2. 2.The trial court's order removing the Appellant's caution on land parcel No. Donyo Sabuk/Komarock Block 1/14027 stands (upheld on appeal)

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(b); Article 159(2)
  • Land Registration ActSection 73(1); Section 71
  • Environment and Land Court ActSection 13
  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51 Rule 1

Cases cited (3)

  • Selle vs Associated Motor Boat Co.
    [1986] EA 123
  • Magdalene Wambui Mbugua Muhia & 2 Others v Charles King Kigwe & 3 Others
    [2019] eKLR
  • Maria Nganga Gwako Vs. Charles Mwenzi Nganga
    Civil Appeal No. 287 of 2012 (2014) eKLR
On appeal from
Magistrate's Court (Kangundo, Environment and Land jurisdiction)
Kangundo ELC Misc. App. No. 3 of 2020
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act (first appellate jurisdiction)

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, "Bryson Mangla Agot v Priscillah Nthoki Mutulili & another [2022] KEELC 521 (KLR)", Case Analysis (2022). ELC Appeal No. 11 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/521/eng@2022-03-23

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