Registration and Withdrawal of Caution in Land

What is a caution?

A caution is primarily used to protect a specific interest or claim in a piece of land. It serves as a warning to potential buyers, lenders, and others that there is a claim or interest in the property.

Grounds for Lodging a Caution

Under Section 71 of the Land Registration Act, 2012, a person may lodge a caution if:

·       They claim an interest in the land: This could include a buyer who has paid a deposit, a beneficiary under a will, or someone with a legal right to use the land.

·       They are a legal representative: Acting on behalf of a deceased person’s estate, particularly during inheritance disputes or unresolved succession matters.

·       There is a government or public interest: In some cases, government entities may lodge a caution to prevent dealings on land earmarked for public use or other governmental purposes.

Process of Lodging a Caution in Kenya

The process of lodging a caution involves:

·       Application: The applicant (cautioner) must fill out a prescribed form and provide evidence supporting their claim to an interest in the land. The form must be submitted to the local land registry where the property is registered.

·       Verification: The land registrar will examine the application and supporting documents to determine whether the caution is valid and should be registered.

·       Registration: If approved, the caution is entered into the land register, and the cautioner is notified in writing.

Effects of a land Caution in Kenya

Once a caution is registered:

·       The land registrar cannot register any transaction (sale, lease, mortgage, transfer) on the land without notifying the cautioner.

·       It acts as a temporary restriction until the caution is lifted or the underlying issue is resolved.

·       Removal of a Caution On Land in Kenya

Removing a land caution in Kenya

A caution can be removed in the following ways:

·       Withdrawal by the Cautioner: If the interest in the land has been satisfied or the dispute resolved, the cautioner can voluntarily withdraw the caution.

·       Order of the Registrar: The land registrar may remove a caution if it is deemed frivolous or unjustifiable. This usually follows a notice to the cautioner, giving them time (typically 30 days) to respond.

·       Court Order: An aggrieved party can apply to the court to remove the caution if it is preventing lawful dealings on the land.