Sang v Jelagat

Kapseret, and the same be distributed to the Applicant’s immediate family members during his lifetime. 4. That the Officer Commanding Station (OCS), SIMAT Police Station, be directed to provide security and maintain law and order during the subdivision exercise to prevent breach of peace, obstruction or violence. 5. That in default of cooperation by any Respondent in execution of the subdivision and transfer process, the Deputy Registrar of this honourable court be authorized to execute all necessary documents on their behalf. 6. That costs of this Application be in the cause. 2. The application is premised on 8 grounds on the face thereof and on the applicant’s Supporting Affidavit sworn on even date in support of his application. 3. The applicant deponed that he is an adult of sound mind and the absolute registered proprietor of the parcels of land known as L.R. Nos. UASIN GISHU/KORMAET SCHEME/454, UASIN GISHU/KORMAET SCHEME/455, UASIN GISHU/KORMAET SCHEME/456 and UASIN GISHU/KORMAET SCHEME/457 and annexed copies of the title deeds thereto. 4. It is his claim that he is the father and the head of the family occupying portions of the suit parcels and it is therefore his desire to subdivide the said parcels and distribute the same among the members of his family. He outlined his proposed mode of distribution of the various portions of the suit properties to the respective members of his family, with each member being entitled to specific portions thereof. ELC Misc Case No. E022 Of 2026 Ruling Page 2

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5. The applicant went on to state that he engaged a licensed surveyor to undertake the subdivision exercise but the surveyor and his representatives were faced with opposition, threats and violence from some members of the family thus obstructing the survey exercise. 6. It is his contention that as a result of the prevailing hostility, there exists an imminent risk of breach of peace, destruction of property, physical harm to him, the surveyor and other officers hence the need for police assistance for purposes of supervision and maintaining law and order during the survey exercise. 7. The applicant further avers that unless the court intervenes and grants the orders sought, he risks being denied the lawful use and enjoyment of his properties, contrary to the provisions of Article 40 of the Constitution. 8. He deponed that this court is vested with the requisite jurisdiction pursuant to the provisions of Article 162(2) (b) of the Constitution and sections 18,19,73 and 80 of the Land Registration Act. 9. In conclusion, he maintained that it is fair, just and in the interest of justice that the orders sought be granted to ensure peaceful and lawful subdivision. 10. The present Application was opposed. The Respondent/Cautioner filed both a Grounds of Opposition dated 23.07.2026 and a Replying Affidavit sworn and also dated 23.07.2026 in response to the averments made in the application. ELC Misc Case No. E022 Of 2026 Ruling Page 3

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11. In the Grounds of Opposition; it was stated that the applicant does not have the capacity to institute, swear affidavits or give any instructions for the filing of the suit for the reason of the applicant’s mental capacity. 12. That the applicant’s mental capacity was addressed vide the letter dated 06.09.2024 by the Assistant Chief, Kapseret Location and addressed to the Land Registrar; wherein it is indicated that the Applicant has a “mental illness” and that he is unable to transact any business without his personal consent and further that no dealings should be registered against the suit parcels without the involvement of the applicant’s immediate family members. 13. It is therefore the respondent’s contention that the said letter dated 06.09.2024 informed the registration of the restriction/caution which the applicant seeks to have removed. 14. With regard to the applicant’s alleged mental incapacity, it was further averred that there was no medical, psychiatric or other clinical assessment of the applicant presented in court and she therefore urged the court to direct that the applicant undergoes an independent medical or psychiatric examination and the report be filed in court. 15. It is her contention that the applicant does not, most of the time, understand or appreciate the nature and effect of the transactions being undertaken in his name, including the intended subdivision of the suit properties. ELC Misc Case No. E022 Of 2026 Ruling Page 4

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16. It was further argued that the intended subdivision and distribution of the suit properties is not the applicant’s own free will and informed decision but one that is being propelled by the applicant’s second wife. That the respondent and her brother were not consulted on the scheme of distribution despite having a direct and legitimate interest in the applicant’s assets. 17. It was their claim that the respondent and her brother Ezra Kiprop, by virtue of having a direct interest in the suit properties as children of the applicant, lodged the caution/restriction on the suit parcels for purposes of protecting their father’s assets while the applicant’s mental capacity remains unresolved. 18. She further argued that the orders sought herein for the removal of the caution pursuant to the provisions of section 73 of the Land Registration Act, cannot be granted on account of the applicant’s mental capacity, which is in dispute and that the said removal is allowed it will occasion the cautioners great prejudice. 19. In conclusion, the Respondent maintained that it is in the interest of justice and the best interest of the applicant that the application be dismissed and, in the alternative, the same be stayed pending an independent medical/psychiatric assessment of the applicant and further, the matter be referred to mediation among the applicant’s family members pending the determination of the substantive orders sought herein. ELC Misc Case No. E022 Of 2026 Ruling Page 5

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20. In her Replying Affidavit, the respondent confirmed to be the Cautioner, having lodged a caution against the title of the suit properties L.R. Nos. UASIN GISHU/KORMAET SCHEME/454, 455, 456 and 457 respectively all registered in the names of the applicant. 21. It is her contention that her brother and herself, have a direct beneficial interest in the suit properties as the children of the applicant from his first wife, who is since deceased. 22. In response to the contents of paragraph 3 of the supporting affidavit, she deponed that the intended subdivision and distribution of the suit properties is not the applicant’s own free and informed will but that the same is being orchestrated by the applicant’s second wife to the exclusion and meaningful consultation with her brother and herself. 23. It is the respondent’s claim that the applicant suffers from mental illness, which most of the time impairs his understanding and ability to appreciate the happenings around him, including the nature and consequences of the subdivision and consequences of the copy of subdivision and distribution exercise. 24. The respondent annexed a a letter dated 06.09.2024, by the Assistant Chief, Kapseret Location Mr. Silvano Melilei, addressed to the Land Registrar, which confirmed that the applicant “has a mental illness and he is unable to transact any business without his personal interest” and further that there should be no dealings ELC Misc Case No. E022 Of 2026 Ruling Page 6

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registered against the suit properties without the involvement of the applicant’s immediate family members. 25. That pursuant to the said letter dated 06.09.2024 by the Assistant Chief, they lodged the restriction/caution against the suit properties, which fact she avers was not disclosed in the present application. 26. She maintained that the caution over the suit properties was lodged in good faith and for the purpose of protecting her father’s assets from being subdivided or transferred when there exist doubts about his mental capacity which has remained unresolved and unaddressed by any competent medical opinion. 27. She further averred that the applicant had not produced any medical or psychiatric report on his mental health, either to the Land Registrar or to this court or otherwise and that this court is therefore not in a position to ascertain the mental capacity of the applicant. 28. The respondent also urged the court to refer the dispute herein for mediation, as an alternative form of dispute resolution in line with the provisions of Article 159(2) (c) of the Constitution, which she was willing together with her brother, to fully participate before any final orders touching on the removal of the caution can be made. 29. In conclusion, she stated that she was not opposed to the subdivision or distribution of the suit properties but maintained that her aim was to ensure that the said exercise is done on the applicant’s free will and arrived at after a full ELC Misc Case No. E022 Of 2026 Ruling Page 7

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consultation with all the family members and is not affected by any undue influence. 30. She thus urged the court to dismiss the present application with costs and/or in the alternative, to stay the same pending an independent medical assessment of the applicant and mediation with the family. 31. When the matter came up before this court for interpartes hearing on 07.07.2026, Mr. Bett, Counsel for the applicant, informed the court that despite the present application having been served upon the respondent and an affidavit of service dated 03.07.2026 duly filed to that effect, they had not received any response from her. He therefore urged the court to allow the application and a ruling date was issued. 32. I did however note that Mr. Bett’s position was not accurate since from a perusal of the online filing platform, CTS, the application had been opposed and the respondent had filed both a Grounds of Opposition and a Replying Affidavit, which I have summarized hereinabove. 33. I will therefore proceed to render my determination on the present application based on the facts as presented in the respective Affidavits and the annexures adduced thereto as well as on the Grounds of Opposition. Analysis and Determination: 34. I have carefully considered the Application and the grounds therein, the Supporting Affidavit and annexures thereto as well as the Grounds of Opposition and replying affidavit by ELC Misc Case No. E022 Of 2026 Ruling Page 8

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the respondent in totality. It is therefore my considered view that the issues arising for determination are as follows: - 35. i. Whether the applicant has proved his case to warrant the grant of an order for the removal of caution registered against the suit parcels of land. ii. Whether the present application is merited. iii. Who shall bear the costs of the present Application. Having identified the above issues for determination, I will now proceed to discuss the same as hereunder. Whether the applicant has proved his case to warrant the grant of an order for the removal of caution registered against the suit land; 36. The first issue herein seeks to determine whether the applicant has proved his case to warrant the removal of the caution and/or restriction lodged against the title of the suit properties. 37. Section 73 of the Land Registration Act provides the statutory framework on the process to be followed for the withdrawal and removal of a caution. The section provides as follows: “(1) A caution may be withdrawn by the cautioner or removed by order of the court or, subject to subsection (2), by order of the Registrar. ELC Misc Case No. E022 Of 2026 Ruling Page 9

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(2) The Registrar, on the application of any person interested, may serve notice on the cautioner warning the cautioner that the caution will be removed at the expiration of the time stated in the notice. (3) If a cautioner has not raised any objection at the expiry of the time stated, the Registrar may remove the caution. (4) If the cautioner objects to the removal of the caution, the cautioner shall notify the Registrar, in writing, of the objection within the time specified in the notice, and the Registrar shall, after giving the parties an opportunity of being heard, make such order as the Registrar considers fit, and may in the order provide for the payment of costs. (5) After the expiry of thirty days from the date of the registration of a transfer by a chargee in exercise of the chargee’s power of sale under the law relating to land, the Registrar shall remove any caution that purports to prohibit any dealing by the chargee that was registered after the charge by virtue of which the transfer has been effected. ELC Misc Case No. E022 Of 2026 Ruling Page 10

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(6) On the withdrawal or removal of a caution, its registration shall be cancelled, and any liability of the section cautioner previously 74 not shall be incurred affected under by the cancellation.” 38. Section 73(1) thus empowers this court and vests it with the requisite jurisdiction to entertain the present application and grant the orders in the nature sought. 39. It is not in dispute that the applicant and the respondent herein are father and daughter respectively. It is also not in dispute that the applicant is the registered and lawful proprietor of the suit properties herein. 40. It is the applicant’s claim that being the father and head of his family, whose members are occupying various portions of the suit properties, he expressed his intention of having the said parcels subdivided and distributed among members of his family. 41. It is however his contention that the said intentions for subdivision and subsequent distribution have not been possible due to the caution registered by the respondent against the titles of the said parcels as well as the opposition, hostility and violence from a section of his family members. He thus avers that he has been denied the lawful ELC Misc Case No. E022 Of 2026 Ruling Page 11

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use and enjoyment of his properties hence the need for this court’s intervention. 42. Section 71(1) (a) of the Land Registration Act entitles any person who claims the right to obtain an interest in any land capable of creation by an instrument registrable under the Act to lodge a caution against the said land. 43. The respondent confirmed that she is the cautioner and that she is the one who lodged the various cautions against the titles of the suit properties herein. It is her claim that she has a direct and beneficial interest in the suit properties by virtue of being a daughter of the applicant. 44. It is her contention that the intended subdivision and distribution of the suit properties is not the applicant’s own free will and informed decision since he suffers from mental illness. In addition, the respondent maintained that she and her brother, were not consulted on the scheme of distribution of the suit properties as outlined in the Supporting Affidavit. 45. The respondent maintained that she lodged the cautions on the suit parcels in good faith and for the purpose of protecting her father’s assets. ELC Misc Case No. E022 Of 2026 Ruling Page 12

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46. Having established that the cautions herein was validly lodged and that the respondent had the capacity to lodge the same and the reason thereto, the question that therefore follows is whether the same can be withdrawn and/or removed as sought by the applicant. 47. It is the applicant’s claim that unless the court intervenes and order the removal of the caution, he risks being denied the right to lawfully use and enjoy his properties contrary to the provisions of Article 40 of the Constitution. 48. The respondent on the other hand opposed and/or objected the said removal of the respective caution registered on the suit properties. It is her claim that the applicant suffers from mental illness which has impaired his understanding and ability to appreciate the happenings around him including the nature and consequences of the intended subdivision and proposed distribution. She therefore urges that unless the applicant’s mental capacity is ascertained and resolved the caution should not be removed/ withdrawn. 49. To support her claim that the applicant is mentally ill, the respondent annexed a copy of a letter dated 06.09.2024 by Mr. Silvano Melilei, the area Assistant Chief, Kapseret Location, and which I seek to reproduce the contents therein as hereunder: - ELC Misc Case No. E022 Of 2026 Ruling Page 13

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“This is to certify and confirm that the abovenamed parcels are in my area of jurisdiction. It has some disputes from the family members. The owner who is Mr. Abraham Kimaiyo Sang of ID No. 6859035 has a ‘mental headlines’ and he is unable to transact any business with his personal consent. I am requesting your good office to restrict any dealings no dealings with the abovenamed parcels without the involvement of his entire and immediate family members because he is a family of polygamy” 50. Consequently, the question that arises and which begs this court’s determination is whether the respondent’s objection and claim hold water and whether the same should be used as a basis to sustain and/or retain the caution as lodged against the suit properties. 51. The Mental Health Act, Cap 248 defines a person with mental illness as follows: “a person diagnosed by a qualified mental health practitioner to be suffering from mental illness, and includes— (a)a person diagnosed with alcohol or substance use disorder; and (b)a person with suicidal ideation or behaviour; ELC Misc Case No. E022 Of 2026 Ruling Page 14

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52. From the facts and grounds in the Replying Affidavit as well as the annexure thereto, it is evident and clear that the applicant has not been diagnosed by a qualified mental health practitioner to be suffering from mental illness. Save for the Assistant Chiefs’ letter dated 06.09.2024, there is no material that has been placed before this court which addresses the applicant’s alleged ‘mental illness and incapacity’ and/or which formed the basis of the Assistant Chief’s letter and the respondent’s allegations. 53. It is settled law that ‘he who alleges must prove’. Section 109 of the Evidence Act provides that the burden of proof as to the existence of any particular fact lies on the person who wishes the court to believe in its existence. The respondent having made the allegations of the applicant’s mental incapacity, she bears the burden of proving the said allegations to the required standard. 54. The Supreme Court case of Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] eKLR held that:"The person who makes such an allegation must lead evidence to prove the fact. She or he bears the initial legal burden of proof which she or he must discharge. The legal burden in this regard is not just a notion behind which any party can hide. It is a vital requirement of the law. On the ELC Misc Case No. E022 Of 2026 Ruling Page 15

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other hand, the evidential burden is a shifting one, and is a requisite response to an alreadydischarged initial burden. “The evidential burden is the obligation to show, if called upon to do so, that there is sufficient evidence to raise an issue as to the existence or non-existence of a fact in issue” [Cross and Tapper on Evidence, (Oxford University Press, 12th ed, 2010, page 124)]." 55. From a look at the annexures in the replying affidavit, this burden was not discharged. As a matter of fact, the respondent at paragraph 10 of the Replying Affidavit deponed that the issue of mental incapacity has remained unresolved and unaddressed by any competent medical opinion. Thus, the Assistant Chief’s letter dated 06.09.2024 as a stand-alone document cannot be deemed as prima facie evidence that the applicant indeed suffers from mental illness. 56. In essence therefore, the respondent and/or cautioner has not given any reasonable and plausible justification to warrant the continued existence of the caution against the suit properties. 57. In the absence of any reasonable excuse, explanation and plausible justification, this court finds no reason to retain the various cautions as lodged against the titles of the suit ELC Misc Case No. E022 Of 2026 Ruling Page 16

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properties herein and find that the same should be removed forthwith. 58. In view of the foregoing, this court finds that the applicant has proved his claim to the required standard to warrant the grant of the order of removal of caution to the satisfaction of this court. Whether the present application is merited; 59. The applicant sought the order for the removal of the caution lodged against the suit parcels. He also urged the court to grant an order allowing the subdivision and distribution of the suit parcels. 60. It is common ground that the applicant herein is the lawful, actual and registered proprietor of the suit properties herein. Section 24 and 25 of the Land Registration Act on the rights acquired upon registration states as follows: “24. Interest conferred by registration Subject to this Act— (a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.... (a) the registration of a person as the proprietor of land shall vest in that person the absolute ELC Misc Case No. E022 Of 2026 Ruling Page 17

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ownership of that land together with all rights and privileges belonging or appurtenant thereto; 25. Rights of a proprietor (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (a) to the encumbrances leases, charges and the to and other conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. 61. From the above statutory provisions, it is evident that the applicant, being the registered owner of the suit properties, is entitled to all the rights and privileges appurtenant thereto and has the free will to deal with his lawful properties in any manner as he deems fit, including applying to the Land Registrar for subdivision and subsequent distribution to his family members as he desires. ELC Misc Case No. E022 Of 2026 Ruling Page 18

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62. Consequently, this court finds that the present application is merited and the applicant is therefore entitled to the grant of part of prayer (2) of the application which seeks removal of cautions. For avoidance of doubt the issue of distribution and prayer (3) are declined, but the applicant, as the registered owner of the suit properties, is at liberty to deal with it as he deems fit, including sub-division and distribution, and does not require an order of court to do so. Who shall bear the costs of the present Application; 63. The general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act, unless the court is satisfied otherwise. 64. However, given the nature and circumstances of the dispute herein and the fact that the parties herein are father and daughter respectively, it is my considered opinion that each party should bear their costs of the application. CONCLUSION: 65. The upshot of the above is that the present application vide the Notice of Motion dated 7th May, 2026 is merited and is hereby allowed on the following terms: a) An order be and is hereby issued ordering and/or directing the removal of the Caution and/or Restriction placed over Land Parcels Nos. UASIN GISHU/KORMAET SCHEME/454, UASIN GISHU KORMAET SCHEME/455, ELC Misc Case No. E022 Of 2026 Ruling Page 19

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UASIN GISHU KORMAET SCHEME/456 and UASIN GISHU KORMAET SCHEME/457 situated at Kapseret, forthwith. b) That the Officer Commanding Station (OCS), SIMAT Police Station, be directed to provide security and maintain law and order during any subdivision exercise to prevent breach of peace, obstruction or violence. c) Each party to bear their own costs of the present application. 66. It is so ordered. DATED, SIGNED and DELIVERED at ELDORET this 17th day of SEPTEMBER, 2026. HON. C. K. YANO JUDGE Ruling delivered in the presence of: No appearance for the Applicant. Respondent present in person. Court Assistant – Laban ELC Misc Case No. E022 Of 2026 Ruling Page 20

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