Anna Chesaina Kenduiywa v Nandi County Land Registrar [2022] KEELC 2136 (KLR)

Section 73(1) allows a caution to be withdrawn by the cautioner or removed by the Registrar, the court, or subject to subsection (2) by the Registrar. Subsection (2) permits the Registrar, on application by an interested person, to serve notice on the cautioner. The court, relying on Mwangi Rukwaro, found that this process must be exhausted so the Registrar can give the cautioner an opportunity to show cause, and the Applicant had not done so.

The Respondent deponed that the parties herein were not party to Kapsabet RMCC No. 7 of 1982 and that Monica Chemtai, who lodged the restrictions, should have been enjoined to hear her side. Relying on John Kamau Kinyanjui and Nyaga Nderi, the court held that removing the restriction without the cautioner's participation would condemn her unheard, particularly where the documents underpinning the restriction were not availed.

Following Joseph Kibowen Chemior, the court observed that the right to register a caution predates the Land Registration Act and is governed by prior law, which did not provide for removal by Miscellaneous Application or Originating Summons. The fallback under the Civil Procedure Act is to commence suit by Plaint, in which the plaintiff must prove on a balance of probabilities why the caution has no rightful basis.