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ELCPartially AllowedNotice of Motion dated 3rd March 2025· [2025] KEELC 7911 (KLR)

Chege v Registrar & another (Environment and Land Miscellaneous Application E043 of 2025) [2025] KEELC 7911 (KLR)

Environment and Land Court
13 November 2025
2,447 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court ordered the removal of a 24-year-old caution blocking a Nairobi property, confirming landowners can go straight to court to clear stale cautions.

What this practically means

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Executive summary

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The Applicant, Fredrick Kamau Chege, registered proprietor of Nairobi/Block 111/1982 since 1996, moved the court by Notice of Motion dated 3rd March 2025 seeking removal of a caution registered on 20th November 2000 by the 1st Respondent, Ankanory Mudenyo Obuya, claiming a lessee's interest, and costs against the 1st Respondent. The 2nd Respondent, the Nairobi District Land Registrar, opposed through grounds of contention that the suit was an abuse of process, defective for want of a notice under Section 13A of the Government Proceedings Act, and premature for lack of a prior demand under Section 73(1) of the Land Registration Act. The 1st Respondent did not participate. The court framed three issues. On the first, it held that although no statutory notice was issued, the Attorney General's full participation without demonstrated prejudice cured the defect, and Section 13A compliance cannot be elevated to a jurisdictional bar in light of the constitutional commitment to access to justice. On the second, applying Section 73, the court held that the three modes of caution removal are independent; that the 24-year-old caution was unsupported by any lease or registrable interest; that the untraceable cautioner failed to discharge the burden of justifying it; and that the caution was unsubstantiated, irregular and unlawful, defeating certainty of title and Article 40 rights. On costs, although the Applicant succeeded, the court found the matter uncontested on the merits and directed each party to bear their own costs. The application was allowed: the Registrar was ordered to remove the caution forthwith and rectify the register to reflect the Applicant as sole and unencumbered proprietor.

Key legal issues

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01

Effect of failure to issue statutory notice under Section 13A of the Government Proceedings Act

Holding

Failure to issue the notice does not render the application incompetent where the Attorney General participated fully and suffered no prejudice

Reasoning

The object of Section 13A is to notify government departments of intended claims to allow administrative resolution, not to defeat litigation. The Attorney General served, entered appearance, filed grounds of opposition and made written submissions, so had full and effective notice. No prejudice was demonstrated, the claim being procedural/administrative rather than monetary. The 2010 Constitution obliges interpretation that promotes access to justice, so Section 13A compliance cannot be elevated to a jurisdictional requirement nullifying proceedings in these circumstances.

p. 3
02

Conditions for removal of a caution under Sections 71–73 of the Land Registration Act

Holding

The caution lodged by the 1st Respondent was unsubstantiated, irregular and unlawful, and the Applicant satisfied the threshold under Section 73(1) for its removal

Reasoning

The Applicant produced a Certificate of Lease and an Official Search confirming the caution; the cautioner was untraceable and never served. The caution had stood for over 24 years without the cautioner perfecting any lessee's interest. The onus lay on the cautioner to justify the caution, and his silence and absence discharged him of no such burden. An unsupported caution is illegal and must be lifted. The court declared the caution baseless and liable to removal.

p. 5
03

Costs of the application

Holding

Although the Applicant succeeded, each party was directed to bear their own costs as the matter was uncontested on the merits

Reasoning

Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, but the discretion may be departed from for good reason. The 1st Respondent filed no response and the 2nd Respondent filed no affidavit or submissions disputing the facts, so the matter was uncontested and no conduct justified an award of costs against the Respondents.

p. 5

Legal principles established

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  • A caution is temporary and protective in nature and is not intended to subsist indefinitely; a decades-old unjustified caution violates the proprietor's constitutional right to property
  • Failure to issue a notice of intention to sue under Section 13A of the Government Proceedings Act does not render proceedings a nullity where the Attorney General has actively participated without prejudice
  • The three modes of removing a caution under Section 73 of the Land Registration Act are independent of each other; recourse to the Registrar is not a precondition to approaching the court

Court orders

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  1. 1.The Nairobi District Land Registrar is directed to forthwith remove the caution registered on 20th November 2000 against Land Parcel No. Nairobi/Block 111/1982, lodged by Ankanory Mudenyo Obuya, claiming a lessee's interest
  2. 2.Upon removal of the said caution, the Registrar shall rectify the land register to reflect the Applicant as the sole and unencumbered proprietor of the property
  3. 3.Each party shall bear their own costs of this application

Authorities

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Legislation

  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A, 27
  • Land Registration Act No. 3 of 2012Sections 71, 71(4), 73(1)-(6), 75, 78(2)
  • Civil Procedure RulesOrder 51 Rule 1
  • Government Proceedings Act (Cap. 40)Section 13A(1)
  • Constitution of Kenya, 2010Article 40(1)

Cases cited (6)

  • Lepapa Ole Moshono v Land Registrar, Kajiado & Another
    [2019] eKLR
  • In Re Withdrawal of Caution by Mary Njeri Mwaura
    [2017] eKLR
  • CMM v Land Registrar, Uasin Gishu County & Another
    [2021] eKLR
  • Republic v Chief Lands Registrar; Ex Parte: Mary Wamaitha Kaittany
    [2021] eKLR
  • Maria Nganga Gwako v Charles Mwenzi Nganga
    Civil Appeal No. 287 of 2012 (2014) eKLR
  • Magdalene Wambui Mbugua Muhia & 2 others v Charles King Kigwe & 3 others
    [2019] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Sections 73(1) & (6) and 75 of the Land Registration Act No. 3 of 2012 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Chege v Registrar & another (Environment and Land Miscellaneous Application E043 of 2025) [2025] KEELC 7911 (KLR)", Case Analysis (2025). Notice of Motion dated 3rd March 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7911/eng@2025-11-13

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