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ELCDismissedBungoma ELC Misc. Application dated 24th July, 2023 (Miscellaneous Application under Section 73, Land Registration Act)· [2024] KEELC 4546 (KLR)

Kamili & 2 others v Barasa & another (Environment & Land Miscellaneous Case E002 of 2023) [2024] KEELC 4546 (KLR)

Environment and Land Court
6 June 2024
ECE.C Cherono
1,650 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Bungoma refused to remove a caution on family land, ruling that a buyer claiming an interest may protect that claim until the dispute is decided.

What this practically means

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Executive summary

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The applicants, registered owners of four parcels (W.Bukusu/N.Mateka/3686-3689) subdivided from W.Bukusu/N.Mateka/396, moved the court under Section 73(1) of the Land Registration Act to lift a caution lodged by the 1st respondent, who claimed an interest as a beneficiary. The applicants argued the caution was unlawful, and that the 1st respondent's objection in Bungoma Succession Cause P&A 31 of 2007 had been dismissed, with no appeal preferred. The 1st respondent countered that her late husband was a son of Wafula Fumula, who purchased 2.75 acres from Kamili Khaemba Masololwe under an agreement she exhibited; that she had occupied the land for over five decades; that the applicants excluded her family from the succession cause (even demanding Kshs.50,000 to include her); and that she had filed Bungoma ELCOS No. E008 of 2023 claiming adverse possession after the applicants removed her caution and subdivided the land. The court framed the sole issue as whether the applicants had made a case for the orders sought. Applying Section 71(1), it held that a purchaser claiming a contractual right may lodge a caution; the sale agreement was unchallenged and the applicants' evidence unrebutted. With the adverse possession suit pending, no prejudice would arise from the caution remaining. The application was dismissed with costs to the 1st respondent, who retains liberty for the applicants to seek removal if she fails in the substantive suit.

Key legal issues

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01

Whether the applicants made out a case for removal of the caution under Section 73 of the Land Registration Act

Holding

The application was dismissed; the caution was properly lodged as the 1st Respondent claims a beneficial/purchaser's interest supported by an unchallenged sale agreement

Reasoning

Section 71(1) permits a person claiming a right, contractual or otherwise, to lodge a caution. The 1st Respondent's late father-in-law Wafula Fumula bought 2.75 acres from Kamili Khaemba Masololwe under an agreement annexed to her affidavit, giving rise to a contractual obligation. That evidence was unrebutted, the agreement's validity unchallenged, and a substantive suit (Bungoma ELCOS No. E008 of 2023) is pending to establish her interest. No prejudice would be suffered if the caution remains pending that suit.

p. 3
02

Whether the prior dismissal of the 1st Respondent's objection in the succession cause barred maintenance of the caution

Holding

No; the succession court's ruling did not extinguish her claim, and she has since filed a substantive adverse possession suit

Reasoning

The applicants relied on the succession court's ruling dismissing the 1st Respondent's objection. The court noted she was advised to file her claim in the appropriate court and did so by Originating Summons dated 4th December, 2023 seeking a declaration of adverse possession over 2.75 acres. The pendency of that suit means the caution serves a legitimate protective purpose pending determination of her interest.

p. 3

Legal principles established

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  • A person who claims a right, whether contractual or otherwise, to obtain an interest in land capable of creation by a registrable instrument may lodge a caution under section 71(1) of the Land Registration Act
  • For a caution to remain in place, the cautioner must show an interest in the subject property; if the cautioner fails in the pending substantive proceedings, the registered owners may move the court to have the caution removed

Court orders

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  1. 1.The Notice of Motion dated 24th July, 2023 seeking to lift the caution over Land Parcels Nos. W.Bukusu/N.Mateka/3686, 3687, 3688 and 3689 is dismissed
  2. 2.Costs of the application awarded to the 1st Respondent

Authorities

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Legislation

  • Land Registration ActSection 73(1)
  • Land Registration ActSection 71(1)
  • Land Registration ActSection 73
  • Constitution of Kenya, 2010Article 159
Jurisdiction invoked
Section 73(1) of the Land Registration Act and Article 159 of the Constitution of Kenya, 2010

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, "Kamili & 2 others v Barasa & another (Environment & Land Miscellaneous Case E002 of 2023) [2024] KEELC 4546 (KLR)", Case Analysis (2024). Bungoma ELC Misc. Application dated 24th July, 2023 (Miscellaneous Application under Section 73, Land Registration Act). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4546/eng@2024-06-06

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