REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT MOMBASA COUNTY COURT NAME: MOMBASA ENVIRONMENT AND LAND COURT CASE NUMBER: ELCLC/E088/2024 BESTINA KAMOKO JAMES VS LAND REGISTRAR JUDGMENT The applicant has come to me vide an originating summons dated 30th May 2024 seeking declarations that the prohibitory orders registered on all those parcels more particularly known as ; a) SOUTH THARAKA/TUNYAI A 1480 b) SOUTH THARAKA/TUNYAI A 1474 c) SOUTH THARAKA/TUNYAI A 1475 d) SOUTH THARAKA/TUNYAI A 1476 e) SOUTH THARAKA/TUNYAI A 1476 AND f) LIKONI-76473/VII should be removed. The applicant further seeks orders that the Defendant, the Chief Land Registrar, should withdraw and deregister the Prohibitory Orders in the inhibition section of the respective titles in the above titles. Lastly, that the Defendants should bear the costs of this Application. The Grounds relied upon in support of the summons are as follows: a) THAT the Applicants are the bona fide administrators of the Estate of the Deceased. b) THAT the 2nd Applicant moved the High Court in an interlocutory Application for issuance of Prohibitory orders on the suit parcels Mombasa HCC No.56 of 2005 (O.S) c) THAT the said Prohibitory Orders issued on 29th March 2005. The Judiciary of Kenya Doc IDENTITY: 3325628305928041552725754184 Tracking Number:OOQGHU2026 1/4
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d) THAT vide a judgement of the High Court on 23rd April 2007,the said suit was dismissed The Judiciary of Kenya Doc IDENTITY: 3325628305928041552725754184 Tracking Number:OOQGHU2026 2/4
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in its entirety. e) THAT with the dismissal of the said, suit, the said Prohibitory Orders were vacated. f) THAT it is therefore imperative that the orders sought issue. The application is supported by the affidavit of Anna Ngai Dudley who reiterates the grounds in the application. The applicant submits, and I do agree, that the word caveat is not defined by the repealed Registration of titles Act. It is also not expressly defined by the Land Registration Act No. 3 of 2012. The term is, however, given meaning by Section 2 of the Land Registration Act in reference to the term ‘caution’. The said section defines a caution as follows; “caution” means a) a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice; or b) a caveat”. This court is in agreement with the applicant that the term ‘caveat’ therefore, shares the same meaning as a caution. Its effect is to restrict transaction(s) on the land in question without first informing the person who had the caveat registered. It is clear that the Caveats in question were registered pursuant to orders granted at an interlocutory stage during the existence of the matter on the 29th March 2005. The suit was dismissed vide a judgement of 23rd April 2007,whose dismissal, essentially vacated the interlocutory orders placing the caveats on the suit property. Section 57(G) and (10) of the Registration of Titles Act (repealed) provided for the removal of a Caveat as follows; “ (G) Except in the case of a caveat lodged by the registrar, the caveatee may make application in writing to the registrar to remove the caveat, and thereupon and upon payment of the prescribed fee the registrar shall give forty-five days’ notice in writing to the caveator requiring that the caveat be withdrawn, and, after the lapse of the service of the notice at the address mentioned in the caveat, the registrar shall remove the caveat from the register by entering a memorandum that it is discharged, unless he has been previously served with an order of the court extending the time as herein provided. (10) An entry shall be made by the registrar in the register of the withdrawal, lapse or removal of any caveat or of any order made by the court”. I do agree with the applicant that the applicable legislation is one that was in place when the Ex parte Applicant moved the court for removal of the caveat. In this Respect,the Land Registration Act (2012) Section 71 (2) of The Land Registration Act provides substantively on the effect of a caution. It states; “ (2) A caution may eitherThe Judiciary of Kenya Doc IDENTITY: 3325628305928041552725754184 Tracking Number:OOQGHU2026 3/4
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(a) forbid the registration of dispositions and the making of entries; or The Judiciary of Kenya Doc IDENTITY: 3325628305928041552725754184 Tracking Number:OOQGHU2026 4/4
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(b) forbid the registration of dispositions and the making of entries to the extent expressed in the caution. (3) A caution shall be in the prescribed form, and the Registrar may require the cautioner to support the caution by a statutory declaration. (4) The Registrar may reject a caution that is unnecessary or whose purpose can be effected by the registration of an instrument under this Act. (5) Subject to this section, the caution shall be registered in the appropriate register”. The notice and effect of caution is provided for in Section 72 of the Land Registration Act in the following manner; “ 72. Notice and effect of caution (1) The Registrar shall give notice, in writing, of a caution to the proprietor whose land, lease or charge is affected by the caution. (2) A disposition that is inconsistent with the caution shall not be registered while the caution is still registered except with the consent of the cautioner or by the order of the court”. The withdrawal of a caution is provided for in Section 73 in the following terms; “ 73. Withdrawal and removal of caution (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 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”. Section 73 of the Land Registration Act imports that the Court may withdraw a caution. Such withdrawal can only happen upon by the rigours of evidence being adhered to. A caution may also be withdrawn at the instance of the Registrar. According to the Section 73(2) of The Land Registration Act, further provides that a person wishing to have a caution removed applies to the Registrar. The Registrar then serves a time bound notice to the Cautioner to the effect that the caution will be removed at the expiry of the time indicated. According to Section 73(3), the Registrar is at liberty to withdraw the caution where the cautioner fails to raise any objection at the expiry of the notice. In instances where the cautioner raises an objection to the removal, parties are accorded an The Judiciary of Kenya Doc IDENTITY: 3325628305928041552725754184 Tracking Number:OOQGHU2026 5/4
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opportunity to be heard and Orders are made as the Registrar shall consider fit. In this matter, the application is not opposed and therefore I do grant orders as follows:That the prohibitory orders registered on all those parcels more particularly known as ; a) SOUTH THARAKA/TUNYAI A 1480 b) SOUTH THARAKA/TUNYAI A 1474 c) SOUTH THARAKA/TUNYAI A 1475 d) SOUTH THARAKA/TUNYAI A 1476 e) SOUTH THARAKA/TUNYAI A 1476 AND f) LIKONI-76473/VII should be, and are hereby removed. No orders as to costs. SIGNED BY/FOR: ★ TH E JUDICIAR Y O F KENY A ★ HON. JUSTICE ANTONY O. OMBWAYO Mombasa Environment and Land Court Environment and Land Court Date: 2026-09-24 13:07:03 The Judiciary of Kenya Doc IDENTITY: 3325628305928041552725754184 Tracking Number:OOQGHU2026 6/4
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