Mwangigachuma & 2 others v Njagi (Environment and Land Appeal E027 of 2022) [2025] KEELC 5757 (KLR)
The bottom line
#The Environment and Land Court in Eldoret ordered removal of cautions on two plots, ruling courts—not only the Land Registrar—can remove cautions under Kenyan law.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent trespassed on the suit properties
No trespass was proved; the Appellant bore the burden of proof under Section 107 of the Evidence Act and produced no evidence of the nature of the Respondent's occupation or possession.
The Respondent admitted he never took possession of parcel 670, so he never entered it. As regards parcel 671, the Respondent said he handed the purchased quarter-acre to a church, but neither party adduced documentary evidence of the occupation, use or possession on the ground. Section 107 of the Evidence Act placed the burden on the Appellant as counter-claimant, and that burden was not discharged.
Whether the caution on parcel 670 was justified and whether the Trial Court rightly referred removal to the Land Registrar
The caution was unjustified once the Respondent's plaint was struck out, and the Trial Court erred in referring the removal to the Land Registrar since the court itself had power under Section 73(1) of the Land Registration Act to order removal.
Section 73(1) allows a caution to be removed by order of the Court or by order of the Registrar independently. The doctrine of exhaustion was misapplied: no provision prohibits the Court from ordering removal. Since the Respondent's plaint had been struck out, no enforceable interest underpinned the caution, which therefore fell to be removed by court order.
Whether the appeal succeeds
The appeal succeeds only on the caution issue; it fails on eviction and damages, making it a partial success.
The Trial Court correctly applied the facts and law in dismissing eviction (no trespass proved), so that part of the appeal fails. On the caution, the Trial Court misdirected itself on Section 73(1), and the appeal succeeds on that point only.
Legal principles established
#- Under Section 73(1) of the Land Registration Act, a caution may be removed by the Court or by the Registrar independently; the existence of the Registrar's power does not bar the Court from ordering removal, so there is no requirement to first refer the matter to the Registrar.
- Where a plaintiff's suit is struck out, no enforceable interest or right survives to support a caution lodged by that plaintiff.
- First appellate court duty is to reconsider and evaluate the evidence afresh while making allowance for not having seen or heard the witnesses.
Court orders
#- 1.An order to the Land Registrar Uasin Gishu directing him/her to remove and/or delete the caution placed on properties known as Eldoret Municipality/Block 21 (King'ong'o)/670 and 671 forthwith
- 2.Each party to bear its own costs on this appeal
- On appeal from
- Chief Magistrate's Court, Eldoret
- Eldoret CM ELC Case No. 96 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the trial court's judgment (Environment and Land Court Act); appeal from Eldoret CM ELC Case No. 96 of 2020
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwangigachuma & 2 others v Njagi (Environment and Land Appeal E027 of 2022) [2025] KEELC 5757 (KLR)", Case Analysis (2025). Eldoret ELC Appeal arising from Eldoret CM ELC Case No. 96 of 2020; Amended Memorandum of Appeal dated 10.06.2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5757/eng@2025-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.