[2019] KEELC 781 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAJIADO

ELC MISC. APPLICATION NO. 41 OF 2018

STEPHEN NDALAMIA SAITAGA............................APPLICANT

VERSUS

LAND REGISTRAR,

NGONG LANDS OFFICE.......................................RESPONDENT

RULING

What is before Court for determination is the Applicant’s Notice of Motion Application dated the 2nd July, 2018 brought pursuant to section 78(1) of the Registered Land Act and Section 3A of the Civil Procedure Act. The Applicant seeks for the following Orders:

1. THAT the cautions entered against the Applicant’s Land Reference Number Kajiado/ Loodariak / 56 be removed.

2. THAT the costs of this application be provided for;

The application is premised on the summarized grounds that cautions were registered on land parcel number Kajiado/ Loodariak/ 56 hereinafter referred to as the ‘suit land’, on the 26th April, 1994; 2nd February, 2010 and 5th November, 2014 respectively. The Cautions have no legal basis and amount to an infringement of the rights to use and enjoy the interests confirmed to the title. The Respondent has neglected and or refused to remove the restriction in the absence of a Court Order. The Applicant stands to suffer and continues to suffer irreparable loss due to the actions of the Respondent.

The application is supported with the affidavit of the Applicant STEPHEN NDALAMA SAITA where he confirms being the registered proprietor of the suit land. He explains that on the 15th March, 2016, he conducted a search on the suit land and discovered that on 26th April, 1994 three cautions were registered on his land. He claims the wife Hellen Wambuku Ndalamia who had registered a caution on 2nd February, 2010 had applied to the Respondent to remove the said Caution but he failed to comply. He contends that the Respondent has failed to disclose to him the identity of CLR who caused a Caution to be registered on 22nd April, 1994. Further, that the third Caution was on the basis of a sale transaction between himself and one Geoffrey Moriaso Maloiy which Sale had been cancelled due to his inability to pay the purchase price. He reiterates that the above caution is long over due as it is not supported by any court order and it is prudent that the same be removed. He avers that he has visited the Lands Office and requested the Respondent to remove the cautions but to date, the Registrar has failed to do so.

I note the Attorney General was served with a Mention Notice but failed to file a replying affidavit in respect to the instant application.

The Applicant filed his submission, which I have considered

Analysis and Determination

Upon consideration of the Applicant’s Notice of Motion dated the2nd July, 2018 including the supporting affidavit and submissions filed herein, the only issue for determination is whether the three cautions registered on the suit land should be removed.

The Applicant has sought for orders pursuant to section 78 (1) of the Registered Land Act which is a repealed statute. Further, the said provisions do not relate to removal of caution. The Applicant has sought for removal of the caution vide this miscellaneous cause and only furnished court with the Certificate of Official Search, Copy of Title Deed and Letter dated the 21st September, 2017 from his advocate addressed to the Respondent. The Applicant has not enjoined the wife, CLR and Geoffrey Maloiy in this miscellaneous cause and yet they are the ones who were responsible for registration of the said three cautions. He has averred that the wife sought for removal of the caution but failed to furnish court with any proof.

Section 73 of the Land Registration Act makes provisions on removal of a caution and stipulates thus: ‘(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.

(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.

(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.’

The parameters on who should register a caution is well stated in section 71 of the Land Registration Act as stated above.

In the case of Joseph Kibowen Chemjor vs William C. Kisera [2013] eKLR, Justice Munyao Sila observed as follows;

I am alive to the provisions of Article 159 (2) (d) of the Constitution which provides that justice shall be administered without undue regard to technicalities. My view is that the commencement of suit in a manner in which the instituting documents cannot be held to be “pleadings”, goes beyond a mere technicality. It is different where the document filed can be assumed and be regarded as a particular pleading. This probably is the commencement of “suit by a letter” which Mr. Chebii alluded to in his submissions. If framed intelligibly such letter can be regarded as a plaint. However there has to exist special circumstances before such letter can be accepted to be a pleading. Such allowances ought not to be stretched so as to permit counsels to develop a habit of writing letters instead of filing plaints and argue that proceedings can be commenced in whichever way. The purpose of having rules of procedure is to have proceedings controlled in a logical sequence so that justice can be done to all parties. It is incumbent upon parties and counsels to follow the procedures laid out. This of course does not imply that a court has no discretion to permit some sort of deviation especially where the deviation is minimal and no prejudice is caused to the other party.

If I am to allow the current “pleadings” to stand, I do not see how this matter will be determined without prejudice being caused to the defendant. Even if no prejudice will be caused to the defendant I would rather strike out this application at this stage, which will only invite minimal cost, rather than to allow the proceedings to stand, and thereafter be at a loss on how to thereafter proceed with the matter. The former action will benefit all parties and is certainly the lesser of the two evils.’

In associating myself with the decision cited above as well as facts as presented, I find that the issues relating to removal of caution are substantive and parties concerned have to be enjoined in the suit. Further, insofar as the Applicant raises pertinent issues in this cause but failure to include the parties responsible for registration of the said cautions as well as furnishing the court with relevant documents which I have alluded to above, I find that this miscellaneous cause as it stands is incompetent and will proceed to strike it out and direct the Applicant to file a substantive suit.

Costs will be in the cause.

Dated signed and delivered in open court at Kajiado this 12th day of November, 2019

CHRISTINE OCHIENG

JUDGE