Munyao Kioko Muthusi v Sabeth Syonga Munyao

SABETH SYONGA MUNYAO……………….............................RESPONDENT RULING Introduction 1. The Applicant is the registered proprietor of the suit property. The Respondent is his wife. They have thirteen children. She has registered a caution against the title, claiming a beneficial interest. She says the money used to acquire the shares in the farming society was hers. He says the property is his alone. He asks the Court to remove the caution. She asks the Court to let it remain. It is a family at odds over land and it is now before the Court. 2. By an Originating Summons dated 14th April 2026, the Applicant seeks orders for the removal of the caution. In particular, the Applicant seek orders that; a) Spent. b) This Honourable Court be pleased to order the removal of caution lodged and registered in favour of the Respondent on 6/06/2011 against ELCLMISC. NO.E023/20226-RULING 2

page 2 of 18

the Title Number ATHIRIVER/ATHIRIVER BLOCK 1/746. c) Upon granting prayer 2 hereinabove the Land Registrar Machakos County be directed to forthwith remove the said Caution. d) The Honourable Court be pleased to issue such further orders as it may deem fit the interest of justice. e) The costs of this application be provided for. 3. The Application is supported by an affidavit sworn by the Applicant on the same date and is brought under Article 40 of the Constitution and Sections 1A, 1B and 3A of the Civil Procedure Act. 4. The Applicant's case is that he acquired the suit property through his membership in Katelembo Athiani Muputi Farming & Ranching Society Limited and is its absolute registered proprietor. He relies on the title deed issued on 6 th ELCLMISC. NO.E023/20226-RULING 3

page 3 of 18

June 2011, an official search dated 29 th January 2026, and his membership documents. 5. He contends that the Respondent has not demonstrated an interest capable of registration or protection under Section 71 of the Land Registration Act, Cap 300 Laws of Kenya. He further states that although the Respondent is his wife, she has neither instituted nor served upon him any proceedings for the determination of matrimonial property rights. The continued registration of the caution, he argues, interferes with his ability to deal with the property and infringes his proprietary rights under Article 40 of the Constitution. 6. Before these proceedings were commenced, the Applicant had sought removal of the caution before the Land Registrar, Machakos. The parties appeared before the Registrar on 4 th September 2025. In a ruling dated 8 th September 2025, the Registrar declined to remove the caution. ELCLMISC. NO.E023/20226-RULING 4

page 4 of 18

7. The Originating Summons is opposed. The Respondent has filed a Replying Affidavit sworn on 1st July 2026 and written submissions dated 16th July 2026. 8. The Respondent does not dispute the Applicant's registered proprietorship but contests the assertion that he is exclusively entitled to the property. She states that the parties remain married and have thirteen children. She asserts that the money used to acquire the shares in the cooperative society was hers and that the property was registered in the Applicant's name because she did not have a national identity card at the material time. She consequently claims a beneficial interest in the property and maintains that it constitutes matrimonial property. 9. The Respondent also challenges the procedure adopted by the Applicant. She contends that the Originating Summons raises contested questions concerning matrimonial property and beneficial ownership which ought to be determined in ELCLMISC. NO.E023/20226-RULING 5

page 5 of 18

substantive proceedings in which the parties can adduce oral evidence and be subjected to cross-examination. 10. The Respondent relies on Articles 40 and 45 of the Constitution, Sections 6, 7 and 12 of the Matrimonial Property Act, 2013, Sections 28 and 71 of the Land Registration Act and the relevant provisions of the Marriage Act. She submits that her interest as a spouse is capable of protection by a caution and that the Applicant has not established a basis upon which the Court should remove it. 11. The matter was canvassed by way of written submissions. The Applicant did not file submissions. The Respondent filed submissions dated 16th July 2026 in opposition. I have considered the Originating Summons, the affidavits, the submissions and the authorities relied upon by the Respondent. Issues for determination ELCLMISC. NO.E023/20226-RULING 6

page 6 of 18

12. Having considered the application, the affidavits on record, the submissions and the authorities cited, two issues arise for determination: a) Whether proceedings for the removal of a caution under section 73 of the Land Registration Act may properly be commenced by Originating Summons; and b) If so, whether the Applicant has established a basis for the removal of the caution. 13. The Applicant seeks the removal of a caution registered against Title No. Athi River/Athi River Block 1/746. The Respondent contends among other things that the Originating Summons is not the proper procedure for seeking such relief. 14. Before considering whether the caution ought to be removed, the Court must first determine whether it has been properly moved. The Applicant seeks the removal of a caution under section 73 of the Land Registration Act by an ELCLMISC. NO.E023/20226-RULING 7

page 7 of 18

Originating Summons. The issue is therefore whether that procedure is available for an application under that section. 15. The power of the Court to order removal of a caution is conferred by Section 73(1) of the Land Registration Act, Cap 300, which provides: “73. (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. (2) The Registrar, on the application of any person interested, may serve notice on the cautioner warning the cautioner that the caution expiration of will be removed the time stated at the 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. ELCLMISC. NO.E023/20226-RULING 8

page 8 of 18

(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 considers fit, order as the and may in Registrar 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. ELCLMISC. NO.E023/20226-RULING 9

page 9 of 18

(6) On the withdrawal or removal of a caution, its registration shall be cancelled, and any liability of the cautioner previously incurred under section 74 shall not be affected by the cancellation.” 16. Section 73 confers upon the Court the power to remove a caution but does not prescribe the procedure by which that power is to be invoked. The Land Registration Act, however, is not concerned with rules of procedure. Proceedings arising from it are governed by the Civil Procedure Act and the Rules made thereunder. 17. Section 19 of the Civil Procedure Act provides that every suit shall be instituted in such manner as may be prescribed by rules. Order 3 Rule 1 of the Civil Procedure Rules requires that: Every suit shall be instituted by presenting a plaint to the court, or in such other manner as may be prescribed. ELCLMISC. NO.E023/20226-RULING 10

page 10 of 18

18. Section 2 of the Civil Procedure Act defines a suit as all civil proceedings commenced in any manner prescribed. The word ‘prescribed’ is defined by the rules to means prescribed by the rules. It follows that the manner in which civil proceedings are instituted is governed by the applicable procedural law. Proceedings commenced in a manner not prescribed by that law are incompetent from the outset. 19. In my view, actions in courts of law are commenced by presenting a plaint as the ordinary mode of instituting a suit, while permitting other modes of commencement where the law so provides. An Originating Summons is one such mode. It may therefore be used only where the statute or the Rules prescribe it for the proceedings in question. 20. The question, therefore, is whether an application for removal of a caution under section 73 of the Land Registration Act is among the proceedings that may be commenced by Originating Summons. ELCLMISC. NO.E023/20226-RULING 11

page 11 of 18

21. Order 37 of the Civil Procedure Rules prescribes the proceedings that may be commenced by Originating Summons. Applications under the Land Registration Act are specifically dealt with under Rule 8 of that Order which provides: "An application under the Land Registration Act (Cap. 300) other than under Part VII and Part VIII thereof shall be made by originating summons unless there is pending a suit involving the same lands when the application may be made in that suit." 22. Rule 8 permits an application under the Land Registration Act to be commenced by Originating Summons, but expressly excludes applications under Parts VII and VIII of the Act. Section 73 is contained in Part VII, which is headed “Restraints on Dispositions” and comprises sections 68 to 78. It follows that an application for the removal of a caution under section 73 is not one of the applications which may be commenced by Originating Summons. ELCLMISC. NO.E023/20226-RULING 12

page 12 of 18

23. The question whether an application under Part VII of the Land Registration Act may properly be commenced by Originating Summons has been considered in a number of decisions. In Kurgat v Land Registrar & 3 others [2024] KEELC 14195 (KLR), the Court considered an application for the removal of a caution and, in addressing the applicability of Order 37, stated: “The said provision applies to applications under the LRA, other than those under Part VII and VIII thereof. The lodging and removal of cautions in the LRA is to be found at Part VII of the LRA which bears the heading ‘Restraints on Dispositions’, and is therefore one of the sections to which Order 37 does not apply.” 24. In Kiptuya Ngerech Too v Peris Wangui Macharia & another [2018] KEHC 5682 (KLR), the Court considered the position under the repealed Registered Land Act and observed that an application for the removal of a caution ELCLMISC. NO.E023/20226-RULING 13

page 13 of 18

was not among the proceedings for which Order 37 prescribed an Originating Summons. The Court noted that the statutory provision governing the removal of cautions had been excluded from the provisions under which proceedings could be commenced by Originating Summons. 25. The same approach was adopted in Orega & 2 others v Otieno & 2 others [2025] KEELC 175 (KLR), where the Court expressly observed that Order 37 Rule 8 of the Civil Procedure Rules bars the commencement by Originating Summons of proceedings seeking orders in respect of cautions, inhibitions and rectification or cancellation of titles. 26. The requirement that proceedings for the removal of a caution be commenced in the manner prescribed by the Rules was also considered in Joseph Kibowen Chemjor v William C. Kisera [2013] KEELC 140 (KLR). The Court observed: ELCLMISC. NO.E023/20226-RULING 14

page 14 of 18

"A matter touching on whether or not a caution needs to be removed is in my view a civil action which then must be commenced in the manner prescribed by the Rules. The issue whether the caution should be removed or should remain is at that moment a contentious issue that must be tried on merits." 27. I associate myself with the foregoing authorities. Where Parliament or the Rules Committee prescribes the manner in which proceedings are to be commenced, that prescription must be given effect. It is not open to a party to commence proceedings in a manner that the law does not permit. 28. This Court has also considered Order 37 Rule 19 of the Civil Procedure Rules. The Rule empowers the Court, where proceedings have been commenced by Originating Summons under the Order, to direct that they continue as if the cause had been begun by plaint. The power is ELCLMISC. NO.E023/20226-RULING 15

page 15 of 18

discretionary and concerns the manner in which proceedings before the Court are to proceed. 29. In my view, Rule 19 does not enlarge the categories of proceedings for which an Originating Summons is prescribed under Order 37. Its purpose is to enable the Court, in appropriate circumstances, to regulate the further course of proceedings already before it under that Order by directing that they proceed as if commenced by plaint. 30. The present proceedings were commenced by Originating Summons, yet an application under section 73 of the Land Registration Act is expressly excluded from that mode of commencement by Order 37 Rule 8. The defect therefore occurred at the institution of the proceedings. Order 37 Rule 19, which permits the Court to direct that proceedings properly commenced under that Order continue as if begun by plaint, cannot be invoked to cure a mode of commencement which the Rules expressly prohibit. ELCLMISC. NO.E023/20226-RULING 16

page 16 of 18

31. I accordingly find that the Originating Summons dated 14 th April 2026 was not a prescribed mode of commencing proceedings for removal of a caution under section 73 of the Land Registration Act. The Court has jurisdiction to determine an application for removal of a caution, but that jurisdiction must be invoked in the manner prescribed by the Civil Procedure Rules. The present proceedings were not so instituted and are therefore incompetent. 32. That finding disposes of the application. It is therefore unnecessary to delve into the merits of the application. 33. As regards costs, the parties are husband and wife. In the circumstances of the case, I consider it appropriate that the dispute should not give rise to a further financial burden between them. I therefore direct that each party shall bear its own costs of the suit. Disposition 34. For the reasons set out above, I make the following orders: ELCLMISC. NO.E023/20226-RULING 17

page 17 of 18

a) The Originating Summons dated 14 th April 2026 is hereby struck out. b) Each party shall bear its own costs of the suit. It is so ordered Delivered and Dated at Machakos this 24th day of September, 2026. HON. J. N. KUYIONI JUDGE 24.09.2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform In the presence of; Catherine Court Assistant. Mr Kilonzi holding brief for Mr. Kimeu for the Applicants. No appearance for the Respondent. ELCLMISC. NO.E023/20226-RULING 18

page 18 of 18