Good Country Enterprises Limited v Benard Owiti Ongode & The Land Registrar, Bondo
The bottom line
#A Siaya court ruled that a land caution filed without proof of any real claim is unlawful, and undoing it mid-suit doesn't end the case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the caution lodged by the 1st Defendant against the suit property was lawful and justified
- 2.Whether the 1st Defendant has established a defence of adverse possession
- 3.Whether the removal of the caution by the 2nd Defendant renders this suit moot
- 4.Whether the Plaintiff is entitled to the reliefs sought
- 5.Who should bear the costs of the suit?
Key legal issues
#Lawfulness of the caution under Section 71 of the Land Registration Act
The caution was lodged and maintained without reasonable cause; the 1st Defendant failed to prove any registrable interest in the 8 years the caution subsisted
Section 71(1) requires a cautioner to show a right, contractual or otherwise, to obtain a registrable interest. It was undisputed the Plaintiff was registered in 2009 and the caution was only placed in 2018 without any pre-existing claim. The 1st Defendant did not attend court or tender evidence, so failed to discharge the burden under Section 107(1) of the Evidence Act. Continued maintenance for about eight years without suit unjustifiably interfered with Article 40 property rights.
Adverse possession defence
The defence failed entirely for want of evidence
Adverse possession under Sections 37 and 38 of the Limitation of Actions Act requires proof of entry, open, continuous and undisturbed possession adverse to the owner for over 12 years, per Mtana Lewa v Kahindi Ngala Mwagandi. The 1st Defendant pleaded the defence but did not attend the hearing or call any witness, so wholly failed to discharge the burden of proof on a balance of probabilities.
Mootness following removal of the caution
Prayer (b) was overtaken by events but the suit was not moot; declaratory, injunctive and costs prayers remained live
Relying on the mootness doctrine as set out in National Assembly v Institute for Social Accountability, a matter is moot only when no live controversy remains. Removal of the caution did not resolve the underlying dispute over the legality of the caution or costs. The court reasoned that allowing a party to undo the complained-of act after suit would enable parties to defeat deserving claims, which would be a mockery of justice.
Entitlement to permanent injunction
Permanent injunction granted against the 1st Defendant given the demonstrated risk of reintroduction of similar encumbrances
A permanent injunction is granted on the merits after hearing, fully determining the parties' rights, per Kenya Power & Lighting Co. Ltd v Sheriff Molana Habib. Having found the caution wrongful and noting the history showing a real risk of further encumbrances, the court granted a perpetual injunction restraining the 1st Defendant from lodging any caution or interfering with the Plaintiff's use and enjoyment of the land.
Costs
Costs awarded to the Plaintiff against the 1st Defendant only; the 2nd Defendant excused
Under Section 27(1) of the Civil Procedure Act costs follow the event. The Plaintiff substantially succeeded, and the 1st Defendant's unsubstantiated caution caused the litigation. However, PW1 conceded the 2nd Defendant had taken steps including convening meetings and directing a survey, so the court exercised its discretion to relieve the 2nd Defendant of costs.
Legal principles established
#- The onus lies on a cautioner to justify the lodging and continued maintenance of a caution; in the absence of reasonable cause the caution must be removed
- A caution is temporary and protective, pending registration of a legitimate interest, and cannot subsist indefinitely without justification
- A party cannot defeat a suit by voluntarily undoing the complained-of act after suit is filed; the claim for declaratory relief and costs remains justiciable
Court orders
#- 1.A declaration that the caution entered against title number SIAYA/OMIA DIERE/2829 in favour of the 1st Defendant was lodged and maintained without reasonable cause and is unlawful, null and void
- 2.Prayer (b) of the Plaint (order directing removal of the caution) marked as overtaken by events, the caution having been removed during the pendency of the proceedings
- 3.Permanent injunction restraining the 1st Defendant from lodging any caution against or interfering with the Plaintiff's peaceful use, occupation and enjoyment of the suit property SIAYA/OMIA DIERE/2829
- 4.Costs of the suit to the Plaintiff, to be borne by the 1st Defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (dispute relating to title to land)
Relief refused
#Order directing the 2nd Defendant to remove the caution (prayer (b))
The 2nd Defendant had already removed the caution from the register during the pendency of the suit, so the prayer was overtaken by events
Costs against the 2nd Defendant
The court exercised its discretion in the 2nd Defendant's favour given its steps to convene meetings and direct a survey
Costs
The Plaintiff shall have the costs of this suit, to be borne by the 1st Defendant; the 2nd Defendant bears no costs.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
1) A declaration be and is hereby issued that the caution entered against title number SIAYA/OMIA DIERE/2829 in favour of the 1st Defendant was lodged and maintained without reasonable cause and is unlawful, null and void.
3) An order of permanent injunction be and is hereby issued restraining the 1st Defendant, whether by themselves, their servants, agents or otherwise, from lodging any caution against or in any manner interfering with the Plaintiff's peaceful use, occupation and enjoyment of, the suit property known as Land Reference Number SIAYA/OMIA DIERE/2829.
The Plaintiff shall have the costs of this suit, to be borne by the 1st Defendant.
A caution is, by its nature, a protective and interim measure pending resolution of a claimed interest; it is not intended to operate as a permanent or indefinite encumbrance divorced from any pursued or provable right.
Were that to be the position, a party would be at liberty to persist in the very conduct complained of, only to reverse it upon or shortly before judgment so as to defeat an otherwise deserving claim. This would be a mockery of justice.
Issues in the judgment
#Timeline inconsistency: 1st Defendant's case 'marked as closed' on 23 March 2026 though hearing was 5 February 2026
Duration of caution stated as 'approximately eight years' though the pleaded period and dates suggest over eight years (2018-2026)
Defence dated 13th October 2025 described as filed out of time yet no ruling on admission recorded
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Good Country Enterprises Limited v Benard Owiti Ongode & The Land Registrar, Bondo", Case Analysis (2026). ELC Case No. E024 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6062/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.