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ELCAllowedNotice of motion dated 2/3/2022· [2022] KEELC 3264 (KLR)

Muthoka v Makau & another (Miscellaneous Application E014 of 2022) [2022] KEELC 3264 (KLR)

Environment and Land Court
21 July 2022
BEB M Eboso
537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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A Kenyan court removed a caution blocking a land title because the person who filed it sat on their claim for three years without going to court.

What this practically means

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Executive summary

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By notice of motion dated 2/3/2022, the applicant Moses Makau Muthoka, the registered proprietor of land parcel Thika Municipality/Block 24/346, sought removal of a caution lodged against the land register on 3/4/2019 by the 1st respondent, Stella Ndetei Makau. He deposed that the cautioner was a complete stranger with no beneficial interest in the property and that the caution was an unlawful fetter on his right to property. After service by newspaper advertisement in the Daily Nation effected pursuant to court directions, the respondents did not file any response and the application proceeded unopposed. The court framed the sole question as whether the caution should be removed. Relying on section 73(1) of the Land Registration Act, which empowers the cautioner, the Court or the Registrar to remove a caution, and noting the ELC's original jurisdiction over land disputes, the court found that the suit property belonged to the applicant absent contrary evidence, that the application was unopposed, and that since April 2019 the cautioner had not moved the court for any relief. Observing that a caution is not supposed to be a permanent fixture on a land register, the court held it just to grant the prayers sought. The motion was allowed in terms of prayers 2 and 3, effecting removal of the caution, with no order as to costs. Judgment delivered virtually at Thika on 21 July 2022 by B M Eboso, Judge.

Key legal issues

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01

Whether the caution registered by the 1st respondent against the applicant's title should be removed

Holding

The caution was removed; the applicant is the registered proprietor, the application was unopposed and the cautioner had not sought any relief from the court since registration in April 2019.

Reasoning

The court found from the documents annexed to the supporting affidavit, without contrary evidence, that the suit property belongs to the applicant. The application was unopposed, service having been effected by newspaper advertisement and no responses filed. Since April 2019 the cautioner had not moved the court to ventilate any claim, and a caution is not a permanent fixture on a land register. The court invoked section 73(1) of the Land Registration Act and granted the prayers sought.

p. 2

Legal principles established

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  • A caution is not meant to remain indefinitely on a land register; a cautioner who does not move the court for relief risks removal of the caution.
  • Section 73(1) of the Land Registration Act empowers the cautioner, the Court or the Registrar to remove a caution.

Court orders

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  1. 1.The notice of motion dated 2/3/2022 is allowed in terms of prayers 2 and 3 (removal of the caution lodged by the 1st respondent against land parcel Thika Municipality/Block 24/346)
  2. 2.No order as to costs

Authorities

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Legislation

  • Land Registration ActSection 73(1)
Jurisdiction invoked
Section 73(1) of the Land Registration Act; original jurisdiction of the Environment and Land Court over disputes relating to land

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, "Muthoka v Makau & another (Miscellaneous Application E014 of 2022) [2022] KEELC 3264 (KLR)", Case Analysis (2022). Notice of motion dated 2/3/2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3264/eng@2022-07-21

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