Good Country Enterprises Limited v Benard Owiti Ongode & The Land Registrar, Bondo

ii. An order directing the 2nd Defendant to remove the said caution forthwith. iii. An order of permanent injunction restraining the Defendants from interfering with the Plaintiff’s peaceful use of the suit property. iv. The costs of the suit in favour of the Plaintiff to be borne by the Defendants. v. Such further relief as the court may deem fit, equitable, just and necessary to grant in the circumstances. 3. The Plaintiff avers that it is a limited liability company duly registered under the Companies Act and that it is the registered proprietor of the suit property, having been first registered as such on 16th March 2009. 4. It is averred that upon conducting a formal search in October 2018, the Plaintiff discovered that the 1 st Defendant had lodged a caution against the suit property on 2nd May, 2018, which caution has since been maintained by the Defendants for an inordinate period without expiry to the Plaintiff’s detriment. 5. The Plaintiff avers that its directors, Elizabeth Kicia Obel and Anne Atieno Josiah, having established that they and the 1st Defendant are ancestrally related through the Otieno Ogaja family, initiated engagements with the 1 st Defendant with a view to having the caution removed amicably. The 1 st JUDGMENT SIAYA ELCLC E024/2024 2

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Defendant alluded to a claim over less than 10% of the suit property, said to constitute the ancestral homestead. 6. It is averred that on 9 th February, 2020 the Plaintiff’s directors met the 1st Defendant, together with Otom Ogola and Maureen Otom, and that the parties resolved to conduct a site visit in April 2020 to establish the extent of the ancestral homestead, which visit did not take place as the 1st Defendant failed to avail himself. 7. The Plaintiff avers that it thereafter engaged the 2 nd Defendant directly, culminating in the filing of Form LRA 70 dated 8th October 2021 under the Land Registration (General) Regulations, 2017 seeking removal of the caution on grounds that it was unwarranted, wrongful, misconceived and had subsisted for an inordinate and unexplained period to the Plaintiff’s detriment. 8. It is averred that the 2nd Defendant delayed in processing the removal application and that despite several follow-up meetings held on 8th September 2022, 4th October 2022 and 27th October 2022 including a survey exercise for which the Plaintiff paid Kshs. 40,000/= towards its share of the costs the 1st Defendant neither cooperated nor contributed his agreed share, resulting in the collapse of the survey exercise and a partial refund of Kshs. 30,000/= to the Plaintiff. JUDGMENT SIAYA ELCLC E024/2024 3

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9. The Plaintiff avers that vide a letter dated 19 th May 2023, it served the Honourable Attorney General, on behalf of the 2nd Defendant, with a Notice of Intention to Sue pursuant to Section 13A of the Government Proceedings Act and that it has since been greatly inconvenienced by the Defendants’ conduct having exhausted the statutory avenues available to it, the cause of action having arisen and remaining within the jurisdiction of this court. The 1st Defendant’s Case 10. The 1st Defendant filed a Statement of Defence dated 13th October 2025, in which he denied that the Plaintiff is lawfully registered as proprietor of the suit property and averred that the Plaintiff acquired its title illegally and unprocedurally. 11. While admitting that the parties are related by blood and that the suit property constitutes his ancestral home, the 1st Defendant averred that the caution was lawfully registered and maintained to protect the interests of his family, who have occupied the suit property for over 50 years, he himself having been born thereon and having lived there with his parents and continued to do so after their demise. JUDGMENT SIAYA ELCLC E024/2024 4

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12. The 1st Defendant pleaded that the Plaintiff’s suit was time-barred, not having been brought within 12 years and that he had, by virtue of his and his family’s possession and occupation of the suit property for a period exceeding 12 years immediately preceding the suit, acquired the same by way of adverse possession, extinguishing the Plaintiff’s title under Sections 37 and 38 of the Limitation of Actions Act. He prayed that the suit be dismissed with costs. The Plaintiff’s Reply to the 1st Defendant’s Statement of Defence 13. In its Reply dated 13th October 2025, the Plaintiff joined issue with the 1st Defendant on every material allegation, reiterated the contents of the Plaint and contended that the averments in paragraphs 8 to 13 of the Statement of Defence amounted to bare and general denials constituting an abuse of the process of the court, giving notice of its intention to seek to have the said Statement of Defence struck out in limine. The 2nd Defendant’s Case 14. The 2nd Defendant, sued as the Land Registrar, Bondo and represented by the Honourable Attorney General, filed a Statement of Defence dated 17th December, 2024. While admitting the description of the parties and the fact that there was no other pending suit between the parties, the 2 nd JUDGMENT SIAYA ELCLC E024/2024 5

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Defendant pleaded that it was a stranger to the allegations regarding ownership of the suit property and the circumstances surrounding the lodging of the caution, save to state that any documents presented for registration were registrable within its statutory mandate and without notice to the contrary. 15. The 2nd Defendant denied the allegation of delay in processing the caution removal application, averring that if any delay occurred, it was occasioned in the lawful and diligent discharge of its statutory duties under the Land Registration Act, 2012. It denied having been served with any demand or notice of intention to sue and prayed that the suit be dismissed with costs. HEARING AND EVIDENCE 16. Following several mentions before the Deputy Registrar and this court between October 2024 and October 2025, during which the parties made efforts, ultimately unsuccessful, to settle the dispute between the Plaintiff and the 1st Defendant amicably as a family matter, the 1 st Defendant filed his Statement of Defence out of time, on 13th October 2025 without the accompanying witness statements and documents required under Order 11 of the Civil Procedure Rules. The court directed that the suit proceeds by way of viva voce evidence, with the Plaintiff to JUDGMENT SIAYA ELCLC E024/2024 6

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call one witness and fixed the matter for hearing on 17 th December 2025. The Plaintiff’s Case 17. On 5th February 2026, the suit proceeded for hearing before this court. Counsel for the 1 st defendant did not attend. Mr. Okoth held the brief of Ms. Essendi for the 2 nd Defendant. A director of the Plaintiff company testified as PW1, adopting her witness statement as her evidence-inchief and producing the documents contained in the Plaintiff’s List of Documents dated 30 th October 2025 as PEX 1-10 in support of its claim namely; 1) Title Deed of LAND REFERENCE NO. SIAYA/OMIA DIERE/2829 2) The Land's Certificate of Official Search dated 23rd October 2018 indicating the 1st Defendant's Caution placed by the 2nd Defendant on 2nd May 2018 on LAND REFERENCE NO. SIAYA/OMIA DIERE/2829; 3) The Plaintiff's Company Certificate of Incorporation dated 31st January 2008 4) The Plaintiff's Company CR12 obtained on 15th August 2021 5) The Plaintiff's Board Resolutions passed on 14th February 2023 6) The Plaintiff's Form LRA 70 Application dated 8th October 2021 received by the 2nd Defendant on 13th October 2021 requesting for removal of the caution; 7) The Land Registrar/2nd Defendant's letter dated 23rd August 2022 Notice of Intention to remove the Caution 8) Authority under Company Seal dated 14th February 2023 for the purpose of filing suit; 9) A letter dated 19th May 2023, Ref: ACA/122(2) 10) M-pesa payment and return Notification. JUDGMENT SIAYA ELCLC E024/2024 7

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18. On cross-examination, PW1 confirmed that the Plaintiff was registered as proprietor of the suit property on 16 th March 2009 and that the 1 st Defendant’s caution was placed on 2nd May 2018, as evidenced by the official search annexed to the Plaint. She testified that the Plaintiff was at the point of acquiring the suit property, aware of the presence of the 1st Defendant’s family on the land as an ancestral homestead, but that no formal claim of interest existed at that time, the caution having been placed only in 2018. 19. PW1 conceded that the 2nd Defendant had, upon the lodging of the caution, undertaken various steps, including convening meetings and directing a survey, but maintained that the 2nd Defendant had unduly delayed the removal of the caution notwithstanding the Plaintiff’s compliance with the statutory removal process, and that it was for this reason that the Plaintiff had proceeded to sue the 2 nd Defendant despite the latter’s participation in the resolution efforts. 20. On re-examination, PW1 reiterated that the suit property was acquired by the Plaintiff in 2009 and that the caution was placed roughly nine years thereafter, in 2018, at a time when there was no subsisting claim over the land. She confirmed that the 2nd Defendant was sued for its JUDGMENT SIAYA ELCLC E024/2024 8

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failure to remove the caution despite the lapse of a considerable period, and for having refunded only part of the survey monies paid by the Plaintiff. 21. With the above, the Plaintiff’s case was marked as closed. The 1st Defendant’s Case 22. Despite having pleaded a defence founded on adverse possession, the 1st Defendant did not attend court on the hearing date of 5th February 2026 either in person or through counsel and neither testified nor called any witness in support of the averments contained in his statement of defence. His case was accordingly marked as closed on 23 rd March 2026. The 2nd Defendant’s Case 23. On 23rd March 2026, counsel for the 2 nd Defendant informed the court that the caution the subject of this suit had since been removed from the register and that there was accordingly no longer any need to summon the Land Registrar to testify. Counsel for the 2 nd Defendant elected not to call any evidence and the 2nd Defendant’s case was marked as closed on the same date. SUBMISSIONS JUDGMENT SIAYA ELCLC E024/2024 9

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24. The Court directed the parties to file written submissions. Only the Plaintiff filed their submissions dated 28th April, 2026. The Plaintiff’s Submissions 25. Counsel for the Plaintiff submitted that it was not in dispute that the Plaintiff is the registered proprietor of the suit property, that the caution lodged by the 1 st Defendant subsisted for over a decade without any suit being filed to substantiate the interest claimed and that the 1 st Defendant failed to attend court to substantiate or defend the caution. 26. Relying on Section 71 of the Land Registration Act, 2012, it was submitted that the 1 st Defendant had not demonstrated any legal or equitable interest capable of sustaining a caution and that the caution had no legal basis and amounted to an unjustifiable interference with the Plaintiff’s proprietary rights under Article 40 of the Constitution. 27. On whether the removal of the caution rendered the suit moot, counsel submitted that the removal, having occurred only after institution of the suit and court intervention, was a reactive step that did not cure the illegality that had subsisted for over a decade nor extinguish the Plaintiff’s accrued right to declaratory and injunctive relief and amounted, if anything to a tacit JUDGMENT SIAYA ELCLC E024/2024 10

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admission that the caution was unsustainable in law. It was submitted that while prayer (b) of the Plaint had been overtaken by events, prayers (a), (c) and (d) remained live and required determination on their merits. 28. had On the reliefs sought, it was submitted that the Plaintiff established a clear proprietary right, a past infringement of that right and a real risk of recurrence warranting the grant of both declaratory relief and a permanent injunction possession and to protect prevent the Plaintiff’s reintroduction of quiet similar encumbrances. 29. On costs, counsel relied on Section 27 of the Civil Procedure Act and Section 75 of the Land Registration Act, 2012 and submitted that since the suit was necessitated by the Defendants’ conduct the 1st Defendant’s unsubstantiated claim maintained without reasonable cause and the 2nd Defendant’s failure to discharge its statutory duty until compelled by judicial intervention costs should be awarded to the Plaintiff. ANALYSIS AND DETERMINATION 30. I have considered the pleadings, the evidence on record and the submissions filed by counsel for the Plaintiff. Arising therefrom, I am of the view that the following issues stand for determination: JUDGMENT SIAYA ELCLC E024/2024 11

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i. Whether the caution lodged by the 1 st Defendant against the suit property was lawful and justified. ii. Whether the 1st Defendant has established a defence of adverse possession. iii. Whether the removal of the caution by the 2 nd Defendant renders this suit moot. iv. Whether the Plaintiff is entitled to the reliefs sought v. Who should bear the costs of the suit? Whether the caution lodged by the 1st Defendant against the suit property was lawful and justified 31. Section 71(1) of the Land Registration Act, 2012 provides for the persons entitled to lodge a caution, as follows: “71. (1) A person who (a) claims the right, whether contractual or otherwise, to obtain an interest in any land, lease or charge, capable of creation by an instrument registrable under this Act; (b) is entitled to a licence; or (c) has made an application for bankruptcy order against the proprietor of any registered land, lease or charge, (2) A caution may either (a)forbid the registration of dispositions and the making of entries or JUDGMENT SIAYA ELCLC E024/2024 (b)forbid of the registration of 12

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dispositions and making of entries to the extent expressed in the caution.” 32. It is not disputed that the Plaintiff is and was at all material times, the registered proprietor of the suit property, having been first registered as such on 16 th March, 2009. It is equally not disputed from the Plaintiff’s own unchallenged evidence, that the 1st Defendant’s caution was placed against the suit property on 2 nd May 2018, some nine years after the Plaintiff’s registration and without any pre-existing registrable claim having been demonstrated. 33. For a caution to be sustained under Section 71(1) of the Act, the cautioner must demonstrate a right whether contractual or otherwise to obtain an interest in the land capable of creation by an instrument registrable under the Act. The 1st Defendant, in his statement of defence, asserted an interest founded on his and his family’s occupation of a portion of the suit property as an ancestral homestead and in the alternative, on an alleged claim for adverse possession. 34. However, having failed to attend the hearing, tender any evidence or otherwise prosecute his case, the 1 st Defendant did not discharge the burden placed upon him by Section 107(1) of the Evidence Act, which provides: - JUDGMENT SIAYA ELCLC E024/2024 13

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“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 35. The Court is persuaded by the findings in the case of Maria Nganga Gwako Vs Charles Mwenzi Nganga, Civil Appeal No.287 of 2012 (2014) eKLR , where the Court held that: “When a caution is objected to by a proprietor of land affected thereby, the onus is upon the cautioner to justify the lodging of the said caution and the need for it to remain in place…… In the absence of any reasonable cause shown by the Respondent as to why the said caution should not be removed, the application for the removal of the same must succeed”. 36. The Plaintiff’s evidence, which was neither controverted nor tested by any competing evidence, was to the effect that no claim of interest existed over the suit property at the time the Plaintiff acquired it in 2009. According to the Plaintiff the caution was placed only in 2018 and that despite considerable engagement over several years including meetings and a survey exercise for which the Plaintiff bore its share of the costs the 1st Defendant neither JUDGMENT SIAYA ELCLC E024/2024 14

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cooperated to have the extent of his claimed interest ascertained nor came to court to validate it. 37. 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. 38. On the evidence before this court and in the absence of any evidence from the 1st Defendant to justify or sustain the caution, I find that the caution lodged and maintained by the 1st Defendant against the suit property was lodged and maintained without reasonable cause within the meaning of Section 75 of the Land Registration Act, 2012. Further its continued maintenance for approximately eight years, without any suit or other step taken by the 1 st Defendant to substantiate or perfect his claimed interest, amounted to an unjustifiable interference with the Plaintiff’s rights as registered proprietor, protected under Article 40 of the Constitution. 39. The court is persuaded by the findings in Chege v Registrar & Miscellaneous another (Environment Application E043 of and Land 2025) [2025] KEELC 7911 (KLR) where the court held that: “The caution herein has remained registered for over twenty-four (24) years, yet the cautioner JUDGMENT SIAYA ELCLC E024/2024 15

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has not taken any steps to perfect or register the alleged lessee’s interest. A caution is not intended to subsist indefinitely; it is by design temporary and completion of interest. protective, registration Allowing a pending of caution a to the legitimate subsist for decades without justification defeats the policy of certainty of title under the Land Registration Act and violates the proprietor’s constitutional right to property under Article 40(1).” Whether the 1st Defendant has established a defence of adverse possession 40. Although the 1st Defendant pleaded, in the alternative, that he had acquired the suit property by way of adverse possession under Sections 37 and 38 of the Limitation of Actions Act, this plea was not supported by any evidence. 41. The Court of Appeal in the Case of, Mtana Lewa Vs Kahindi Ngala Mwagandi [2015] eKLR, enunciated what the doctrine of adverse possession entails and the circumstances that gives rise to it. The Court stated thus: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such JUDGMENT SIAYA ELCLC E024/2024 16

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person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is averse to the title owner.” 42. Consequently, a party seeking to establish adverse possession must prove on a balance of probabilities; the date of entry into possession, the nature of that possession, whether it was known to the registered proprietor and that it was open, continuous and undisturbed for a period exceeding twelve years. The 1st Defendant, having failed to attend the hearing or tender any evidence whatsoever, wholly failed to discharge this burden. Whether the removal of the caution by the 2 nd Defendant renders this suit moot 43. It is pertinent at this point to look at how the courts have pronounced themselves on the subject for guidance. JUDGMENT SIAYA ELCLC E024/2024 17

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44. The Court of Appeal in National Assembly of Kenya & another v Institute for Social Accountability & 8 others [2017] KECA 170 (KLR) stated as follows: “(14) The mootness doctrine is entrenched in the common law. The Black’s Law Dictionary, Ninth Edition, defines a moot case as: “A matter in which a controversy no longer exists; a case that presents only an abstract question that does not arise from existing facts or rights.” In an article entitled “Federal Jurisdiction to Decide Moot Cases” published in the University of Pennsylvania Law Review [1946] Vol. 94 – No. 2, the author, Sidney A. Diamond explains the essence of the doctrine thus: “Common – law courts have long recognized the strict requirement that permits only cases presenting judicial controversies to be decided. This is a jurisdictional limitation. If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, the case is moot and the court is without power to render a decision.” JUDGMENT SIAYA ELCLC E024/2024 18

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45. It is not disputed that the 2nd Defendant removed the caution from the register sometime before the hearing scheduled for 23rd March 2026 and after the Plaintiff had already closed its case. The question is whether this development renders the suit or any part of it, moot. 46. Applying the above rendition of the court of appeal, a matter becomes moot only where there ceases to be a live controversy capable of resolution by the court and where any decision the court may render would have no practical effect on the rights of the parties. In this instance, while the removal of the caution has overtaken prayer (b) of the Plaint being the specific order directing removal it has not resolved the underlying dispute as to whether the caution ought to have been lodged and maintained in the first place nor has it addressed the question of costs occasioned by the Defendants’ conduct over the preceding years. 47. In my considered view a party cannot, by voluntarily undoing the very act complained of after a suit has been filed and after judicial intervention has been invoked, deprive the opposing party of its right to a determination on the legality of that act and to the consequential relief flowing therefrom, including costs. 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 JUDGMENT SIAYA ELCLC E024/2024 19

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before judgment so as to defeat an otherwise deserving claim. This would be a mockery of justice. 48. I accordingly find that while prayer (b) of the Plaint has indeed been overtaken by events and requires no further order, the suit is not thereby rendered moot, and prayers (a), (c) and (d) of the Plaint remain live and fall for determination on their merits. Whether the Plaintiff is entitled to the reliefs sought 49. The prayers in the suit have already been set out elsewhere in this judgement. The 1 st Defendant has not provided any reasonable cause for the caution to be maintained therefore the same was wrongful. 50. Having found that the caution lodged by the 1 st Defendant was without reasonable cause and unlawfully maintained, the Plaintiff is entitled to a declaration to that effect. 51. On the prayer for a permanent injunction, this court associates itself with the definition of a permanent injunction set out in Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR, where the court held: “A permanent injunction which is also known as perpetual injunction is granted upon the hearing of JUDGMENT SIAYA ELCLC E024/2024 20

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the suit. It fully determines the rights of the parties before the court and is thus a decree of the court. The injunction is granted upon the merits of the case after evidence in support of and against the claim has been tendered. A permanent injunction perpetually restrains the commission of an act by the defendant in order for the rights of the plaintiff to be protected.” 52. Having found that the 1st Defendant lodged and maintained the caution without reasonable cause, and given the real risk, demonstrated by the history of this matter, that similar encumbrances may be reintroduced to frustrate the Plaintiff’s proprietary rights, I find that the Plaintiff is entitled to the permanent injunction sought, restraining the Defendants, whether by themselves, their agents, servants or otherwise, from lodging or maintaining any caution, or otherwise interfering with the register and the Plaintiff’s peaceful use, occupation and enjoyment of the suit property. Who should bear the costs of the suit? 53. Section 27(1) of the Civil Procedure Act provides: - “Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to JUDGMENT SIAYA ELCLC E024/2024 21

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all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 54. Having substantially succeeded in this suit, the Plaintiff is entitled to costs. As between the Defendants, I note that it was the 1st Defendant’s unsubstantiated caution, maintained without reasonable cause and never prosecuted to proof, that gave rise to this suit in the first place and it is he who bears primary responsibility for the litigation and will bear the costs. 55. With regard to the 2nd defendant PW1 conceded during cross examination that the 2nd Defendant had, upon the lodging of the caution, undertaken various steps, including convening meetings and directing a survey. Costs are discretionary and I will in view of these efforts apply my discretion and let the 2nd defendant off the hook in terms of costs of this suit. JUDGMENT SIAYA ELCLC E024/2024 22

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DISPOSITION 56. Consequently, the following orders do issue in final determination of the Plaint dated 14th June 2024: 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. 2) Prayer (b) of the Plaint, seeking an order directing the removal of the caution, is marked as overtaken by events, the caution having been removed from the register during the pendency of these proceedings. 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. 57. The Plaintiff shall have the costs of this suit, to be borne by the 1st Defendant. Delivered and Dated This 1st Day of October 2026 JUDGMENT SIAYA ELCLC E024/2024 23

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HON. LADY JUSTICE A.E. DENA JUDGE 1/10/2026 Judgement delivered virtually through Microsoft teams Video Conferencing Platform in the presence of: Ms Awinda holding brief for Mr. Arika for the Plaintiff Mr. Okoth holding brief for Ms. Essendi for 2ND Defendant Court Assistant: Victor Bwire JUDGMENT SIAYA ELCLC E024/2024 24

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