WHO CAN PLACE A CAUTION OR CAVEAT? THE PROCESS OF LODGING & WITHDRAWAL/REMOVAL OF CAUTION/CAVEAT

 

WHO CAN PLACE A CAUTION OR CAVEAT

Any person who is claiming a contractual or other right over land amounting to a defined interest capable of creation by a registrable instrument, for example a lease, may lodge a caution with the Registrar against any dealing which is inconsistent with his or her interest. Entry of a transaction, with respect to such land, may not then be made unless the cautioner has received notice that the same has to be done. Lodging of a caveat or caution without reasonable cause can lead to a remedy in damages.

HOW TO PLACE A CAUTION

A caution is registered by a person who has an interest on a certain parcel of land to prevent any other person from dealing with the land in a way that prejudices the said interest. The effect of a caution is to forbid, to a certain extent, the registration of dealings and the making of entries in the register relating to the land without the cautioner’s consent or until the caution has been withdrawn by;

 The cautioner or;

Removed by order of the Court or;

The Registrar.

The registrar then gives notice in writing of a caution to the proprietor whose land, lease or charge is affected. So long as the caution remains registered, no disposition which is inconsistent with it shall be registered, except with the consent of the cautioner or by order of the court.

Section 71(1) of the Land Registration Act outlines the qualifications of a lodger. However, this is not an absolute right and the Registrar pursuant to Section 71 (4) of the Land Registration Act may reject a caution that is unnecessary or whose purpose can be effected by the registration of an instrument.

REGISTRATION PROCESS OF A CAUTION/CAVEAT

One requires the following documents:

The prescribed form (Form R.L. 22)

An affidavit explaining the interest the cautioner has in the land

A copy of the title (or the title number)

The prescribed fees

It is important to note that no notice is required to be given to the proprietor of the land before one lodges a caution. The documents are filed with the Registrar of Lands who then gives notice, in writing, of the caution to the proprietor whose land, lease or charge is affected by the caution.

WITHDRAWAL AND REMOVAL OF CAUTION

A caution can be removed by the person lodging the same, or by order of the court, or subject to Section 73 (2) of the LRA, by order of the Registrar, if such person fails to remove it after being served with a notice to do so by the Registrar.

According to Subsection 2 the registrar may, on the application of another person interested, serve notice on the cautioner warning him that his caution will be removed at the expiration of the time stated in the notice. If at the expiration of the time stated the cautioner has not objected, the registrar may remove the caution.

However, if the cautioner objects to the removal of the caution, they 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.

EFFECTS OF LODGING A CAUTION OR CAVEAT WITHOUT CAUSE

Any person who lodges or maintains a caution wrongfully and without reasonable cause shall be liable, in an action for damages at the suit of any person who has sustained damage and to pay compensation to such person

This is because placing a wrongful caution that may lead a registered owner losing prospective clients would attract high damages and compensation. Cautions or caveats are temporary restraints that are lodged with the Registrar of Lands by people forbidding the transactions. Cautioners must prove that they are entitled to interests in the disputed property whose transfer they seek to forbid.

Section 75 of the LRA states that ‘Any person who lodges or maintains a caution wrongfully and without reasonable cause shall be liable, in an action for damages at the suit of any person who has sustained damage, to pay compensation to such person.’

 

Is the presumption of marriage still applicable?

In the absence of any amendments to the Act, the Act constitutes the law of Kenya in respect of and shall have universal application to all cases of intestate or testamentary succession in relation to the estate of deceased persons. Where there is a contradiction between the Act and any other law, in succession matters, the Act will prevail.

Section 3(5) of the Act provides that “notwithstanding the provisions of any other written law, a woman married under a system of law which permits polygamy is, where her husband has contracted a previous or subsequent monogamous marriage to another woman, nevertheless a wife for the purposes of this Act, and in particular sections 29 and 40, and her children are accordingly children within the meaning of this Act.”

This provision is in direct contradiction with sections 6 and 9 of the Marriage Act 2014 (the “Marriage Act“) which provides for the kind of marriages recognised in Kenya and does not include marriages by presumption or “common law marriages”. It requires that all marriages whether religious or customary must be registered to be valid. The Marriage Act also states that where one marries under statute, they cannot subsequently conduct a customary marriage.

Recently in MNK v POM (Petition 9 of 2021) [2023] the Supreme Court of Kenya considered the presumption of marriage in the context of divorce proceedings and the division of matrimonial property and concluded that no inferences about marital status should be drawn from living under the same roof and that the National Assembly ought to formulate and enact laws that deal with cohabitees in long term relationships, their rights and obligations.

However, the presumption of marriage is still applicable in relation to succession. The principles for determining presumption of marriage from prolonged cohabitation are stated in the famous case of Hortensiah Wanjiku Yawe vs. Public Trustee Civil Appeal No. 13 of 1976 the Court held that for the presumption of marriage to arise, some of the factors to be considered include: whether there were children fathered by the deceased, whether there was valuable property acquired jointly, and whether some form of marriage ceremony was performed. The cohabitation should be deemed to have crystallized into a marriage for the presumption to apply.

Who is entitled to take out a Grant of Letters of Administration?

Section 66 of the Act stipulates that preference is given to the following      persons to administer the estate of a deceased person where the deceased dies intestate:

i)             The surviving spouses or spouses, with or without association of other beneficiaries.

ii)            Other beneficiaries entitled on intestacy, with priority according to their respective beneficial interests.

This means that, where the deceased is married, their spouse ranks first in priority and would be entitled to apply for letters of administration. In the order of beneficial interest provided for in the Act, subsequently the next in priority are children of the deceased. Where the deceased has no surviving spouse or children the Act provides for the following order of priority as per section 39 of the Act:

“Father; or if dead, mother; or if dead, brothers and sisters, and any child or children of deceased brothers and sisters, in equal shares; or if none, half-brothers and half-sisters and any child or children of deceased half-brothers and half-sisters, in equal shares; or if none, the relatives who are in the nearest degree of consanguinity up to and including the sixth degree, in equal shares. Failing survival by any of the persons mentioned in paragraphs (a) to (e) of subsection (1), the net intestate estate shall devolve upon the State, and be paid into the Consolidated Fund.”

As stated in the presentation, in the case of Constitutional Petition No.E017 of 2021: Ripples International vs. The Attorney General & Others section 39 was declared unconstitutional as it discriminatorily gives priority to the father of the deceased over the mother.

As per section 56 of the Act, a minor, person of unsound mind or a bankrupt cannot be an administrator of a deceased persons estate.

A body corporate or trust corporation may be issued with Grant of Letters of Administration in accordance with section 57 of the Act.

It is important to note that when petitioning for Grant of Letters of Administration, it is important to obtain the consent of all other person who are rank in priority or are equal in rank in their entitlement to apply for the Grant.

 

The Kenyan Law on Adopted, Legitimated and Illegitimate Children

Adopted, Legitimated and Illegitimate Children

Previously intestacy provisions in English succession law statutes only applied to legitimate children, whether of the deceased or any other relative. African customary law and Islamic law generally provide only for the legitimate children of the intestate. The Law of Succession Act has modified the position and provides for adopted, legitimated and illegitimate children.

 

(a)  Adopted children

For the purpose of entitlement under the rules of intestacy, an adopted child is deemed, by virtue of sections 171, 172, 174, 175 and 176 of the Children Act, 2001, (especially section 174 on Intestacies, wills and settlements)related to the adopted parent and not the natural parental. For the purpose of determining whether an adopted child was living at the date of the intestate’s death, the adopted child is treated as having been born on the date of the adoption. An adopted child cannot therefore claim on the intestacy of a natural parent, but takes on the intestacy of the adoptive parent and other relatives by adoption, such as grandparents, brothers and sisters, and so on. Likewise, if the adopted child dies intestate, the child’s adopted parents, and not the natural parents, will be capable of benefiting under the rules of intestacy- as will brothers and sisters, grandparents and so on by adoption.             

According to the Court of Appeal in WillingstoneMuchigiKimari vs. Rahab Wanjiru Mugo NairobiCACA No. 168 of 1990 (Gachuhi, Muli and Akiwumi JJA) a child informally adopted by a female deceased person is not a child for the purpose of the succession to the estate of such deceased person. Section 3(2) of the Law of Succession Act only caters for children who have been recognised by a male person as his own or whom he has voluntarily assumed permanent responsibility. 

 

(b)  Legitimated children

A child is legitimated by the subsequent marriage of their parents. Legitimated children are deemed to have been born legitimate and can therefore take on intestacy in the same way as any legitimate child (Section 3 of the Legitimacy Act Cap 145).

 

(c)  Illegitimate children

The definition of child in section 3(2) of the Act includes an illegitimate child, that is: a child born to a female person outside wedlock, a child whom a male person has recognised or in fact accepted as his child or for whom he has assumed permanent responsibility. The Court of Appeal in WillingstoneMuchigiKimari vs. Rahab Wanjiru Mugo, stated that the definition in section 3(2) of a child whom the deceased in fact had accepted as his own or for whom the deceased had assumed permanent responsibility only applies to a child whom a male deceased person had accepted or assumed permanent responsibility over. 

 

 As regards paternity section 118 of the Evidence Act is a guide. The provision states that  the fact that a child was born during the continuance of a valid marriage between the mother of the child and any man, or within two  hundred and eighty days after its dissolution, the mother remaining unmarried, should be taken to be conclusive proof that the child is a legitimate child of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when the child would have been begotten. Under section 3(2) of the Law of Succession Act, the child has the same inheritance rights as the legitimate children of the intestate. 

Read More from: PROBATE AND ADMNISTRATION LAW NOTES 

🏛️ Case Summary: Dennis Kivuti Mungai v AG

Background & Parties

• Plaintiff/Petitioner: Dennis Kivuti Mungai, a widower married under Kiembu customs.
• Defendant/Respondent: Attorney General representing the State.
• The case concerns Section 29(c) of the Succession Act, which requires a widower to prove he was being maintained by his deceased wife in order to inherit from her estate, whereas widows face no similar burden. 

 

⚖️ Key Legal Issue

• Whether Section 29(c) discriminates against men by imposing an unfair burden of proof for inheritance, thus violating constitutional rights and principles of equality under Article 27 of the Constitution.

 

📌 Facts & Allegations

• Mungai and his late wife, Caroline Wawira, married in April 2002, under customary law, and had two children. Wawira tragically died on July 24, 2023 standardmedia.co.ke.
• Following her death, Mungai claimed he was excluded by the deceased’s family during burial and denied inheritance rights.
• The core grievance: Section 29(c) unfairly requires a widower to prove maintenance by the deceased wife, whereas widows automatically qualify as dependents standardmedia.co.ke.

 

🧑‍⚖️ Petitioner’s Arguments

• The requirement is sex-based discrimination, violating Article 27 (equality before the law).
• It imposes an unfair burden on widowers, denying them equal succession rights standardmedia.co.ke.
• Mungai urged the court to declare the section unconstitutional and direct Parliament to amend it for gender equality. 

 

🚨 Status

• As of the last report (June 2025), the suit is pending in the High Court.
• No judgment has been issued yet; proceedings on equality and constitutional interpretation continue.

 

👩‍⚖️ Constitutional Implications

• If successful, the case could reshape succession law, harmonizing it with constitutional gender equality mandates.
• It highlights the tension between customary/succession law and modern constitutional protections under Article 27.

 

Next Steps:

• Follow-up judicial updates once the High Court gives directions or judgment.
• Monitor whether the Attorney General defends the status quo or concedes constitutional flaws.

 

Review: Article 37 – Freedom of Assembly, Demonstration, Picketing and Petition

Article 37 – Freedom of Assembly, Demonstration, Picketing and Petition

"Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present petitions to public authorities."

🔍 Key Points to note:

• This is a constitutional right available to every person in Kenya.
• The right must be exercised peacefully and without arms.
• It includes the ability to:
• Assemble (gather in groups)
• Demonstrate (publicly show support or opposition)
• Picket (stand or march to protest or draw attention)
• Petition public authorities (formally present grievances or requests)

⚖️ Implications:

• The state cannot unreasonably restrict peaceful protests or assemblies.
• However, regulations (e.g. Public Order Act) may impose procedural requirements such as notification to authorities.
• Violent or armed protests are not protected under this Article.

 #END

The Context of Summary Dismissal in Kenya:

Under the Employment Act, 2007, an employer can summarily dismiss an employee without notice for gross misconduct. However, Section 41 of the Act mandates that before terminating an employee (including summary dismissal), the employer must:

1. Explain the reason for the contemplated termination in a language the employee understands.
2. Allow the employee to respond to the allegations.
3. Afford the employee the right to have another employee or a trade union representative present during any hearing.

These requirements underpin the principle of natural justice, ensuring an employee's right to be heard.

The process of purchasing property in Kenya (Conveyancing process)

Introduction: 

The process of purchasing property in Kenya, known as conveyancing, is a complex legal undertaking that requires the expertise of a qualified advocate. The advocate's role is crucial in safeguarding the client's interests, ensuring legal compliance, and preventing fraud.

Significant processes to note when a client is purchasing property in Kenya:
 

1. Client Instructions and Engagement:

Initial Consultation:  

The advocate will meet with the client to understand their objectives, the nature of the property they intend to buy, their budget, and any other specific concerns.

Explanation of Process:  

The advocate will explain the entire conveyancing process, timelines, potential costs (fees and disbursements), and what the client needs to provide.

Letter of Engagement/Retainer Agreement:  

A formal agreement is signed between the advocate and the client, outlining the scope of services, professional fees (often guided by the Advocates Remuneration Order, 2014, as amended), payment terms, and client responsibilities. 

This ensures clarity and avoids future disputes.
 

2. Due Diligence and Property Verification (The Most Critical Stage):

Obtaining Property Documents: 

The advocate will request essential documents from the seller or their advocate, including:

• Copy of the Title Deed/Certificate of Lease.
• Seller's National ID/Passport and KRA PIN Certificate.
• Spousal consent (if the seller is married and the property is matrimonial land).
• Company registration documents (if the seller is a company).
• Rates and Rent Clearance Certificates.
• Survey map/Mutation Form (for subdivided plots).

Official Search at Lands Registry: 

The advocate conducts a formal search at the relevant Lands Registry(or Ardhisasa as applicable) to:

• Verify the registered owner of the property.
• Confirm the size and boundaries of the property.
• Ascertain the tenure (freehold or leasehold) and its unexpired term.
• Check for any encumbrances (e.g., existing mortgages, charges, cautions, caveats, easements, or court orders) that might affect the property.
• Confirm the authenticity of the title deed.

Local Authority Searches: 

To ascertain:

• Outstanding land rates and service charges from the County Government.
• Any planning restrictions or proposed developments that might affect the property's use.
• Obtain a Rates Clearance Certificate.

Company Searches (if applicable): 

If the seller is a company, a search is conducted at the Registrar of Companies to confirm its legal existence, directorship, and authority to sell. 

Physical Inspection Advice: 

The advocate advises the client to conduct a physical inspection of the property with a surveyor to confirm its actual condition, boundaries, and ensure it matches the land records, and identify any third-party occupants or encroachments.

Verification of Seller's Identity: Ensuring the seller is the legitimate owner and has the legal capacity to sell. The advocate's role here is crucial in mitigating risks such as fraudulent titles and unconsented sales.

3. Negotiation and Drafting of Sale Agreement: 

Negotiation of Terms: 

The advocate assists the client in negotiating the terms of the sale, including the purchase price, payment schedule, conditions precedent (e.g., obtaining consent), and the completion period (typically 90 days). 

Review/Drafting of Sale Agreement:

• The seller's advocate usually drafts the Sale Agreement. The buyer's advocate meticulously reviews it to ensure all clauses are fair, protect the buyer's interests, and comply with the Law of Contract Act and Land Act.
• The agreement includes details like parties, property description, purchase price, deposit amount, payment timelines, conditions for completion, default clauses, and dispute resolution mechanisms.

Execution of Sale Agreement: 

Both the buyer and seller, along with their witnesses, sign the Sale Agreement. The buyer usually pays a deposit (commonly 10% of the purchase price), which is often held by the seller's advocate in a client account as a stakeholder. The advocate ensures these funds are held securely until the conditions for their release are met.
 

4. Obtaining Consents and Clearances: 

Land Control Board (LCB) Consent: 

If the property is agricultural land, the seller's advocate applies for consent from the Land Control Board. This is a mandatory step, and without it, the transaction is null and void. The advocate ensures all necessary documents are prepared and attends the LCB meeting.

Rates and Rent Clearance Certificates: 

The advocate ensures that all outstanding land rates and land rent (for leasehold properties) are cleared by the seller, and the relevant clearance certificates are obtained.
 

5. Valuation and Stamp Duty Payment: 

Valuation: The buyer's advocate usually advises on a government valuation (or private valuation) of the property. This valuation is crucial for calculating stamp duty.

Stamp Duty Assessment and Payment: The advocate assists the client in computing, assessing, and paying stamp duty to the Kenya Revenue Authority (KRA). This is a mandatory tax (4% of the value for urban properties, 2% for rural/agricultural properties). The documents (Sale Agreement and Transfer Forms) are stamped to legalize them.
 

6. Transfer and Registration: 

Drafting Transfer Documents: The buyer's advocate drafts the necessary Transfer Forms (e.g., Form L.R. or others depending on the land regime).

Execution of Transfer: The Transfer Forms are executed by both the buyer and seller in the presence of the advocate, who attests to the signatures.

Lodging Documents for Registration: Once all conditions are met, all completed and stamped documents are lodged at the relevant Lands Registry for registration. These typically include:

• Original Title Deed/Certificate of Lease.
• Duly executed and stamped Transfer Forms.
• Consent to Transfer (if applicable, e.g., LCB consent)
• Rates Clearance Certificate.
• Land Rent Clearance Certificate (if applicable).
• KRA PIN Certificates of both parties.
• National IDs/Passports of both parties.
• Passport photos of both parties.
• Payment receipts for stamp duty.

Follow-up and Issuance of New Title: The advocate continuously follows up with the Lands Registry to ensure the transfer is processed efficiently. Once registered, a new Title Deed or Certificate of Lease is issued in the buyer's name.

7. Post-Completion Activities: 

Handover of Original Title: The advocate hands over the original Title Deed/Certificate of Lease to the client.

Post-Registration Search: Conducts a final search to confirm that the property has been registered in the client's name and is free from any new encumbrances.

Advisory: Advise the client on subsequent steps, such as taking possession, obtaining necessary utility connections, or any further developments like obtaining construction permits (if applicable). 

Custodian of Documents: The advocate may hold original completion documents in their strong room for safekeeping on behalf of the client, as agreed.

By meticulously following these processes, the advocate ensures that the client acquires a legally sound title to the property, minimizing risks and protecting their investment.

To reach to our team of Advocates, feel free to drop a comment or contact details at the "Comment" Section on this website.  

Key Terms to Consider When Reviewing a Loan/Financing Agreement

When reviewing a loan agreement, it’s essential to pay close attention to key terms that define the rights, obligations, and risks for both the lender and the borrower. Here are the key terms to consider:

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1. Loan Amount and Disbursement Terms

• Clearly state the principal amount being lent.
• Check how and when the loan funds will be disbursed.
• Look out for conditions precedent (e.g., documents to be provided before disbursement).

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2. Interest Rate and Fees

• Confirm the interest rate type: fixed, floating, or variable.
• Watch for additional fees: arrangement fees, commitment fees, late payment penalties, etc.
• Understand how interest is calculated (e.g., daily, monthly, annually).

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3. Repayment Terms

• Review the repayment schedule: periodic payments, bullet payments, grace periods, etc.
• Check if early repayment is allowed and whether any prepayment penalties apply.
• Understand the currency and method of repayment.

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4. Security/Collateral

• Identify whether the loan is secured or unsecured.
• If secured, confirm the nature of the collateral (real estate, movable assets, shares, etc.).
• Check for any charges, liens, or rights over the assets provided as security.

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5. Covenants

• Positive covenants: Obligations the borrower agrees to do (e.g., maintain insurance).
• Negative covenants: Restrictions (e.g., no additional borrowing, no asset disposal).
• Failure to comply can trigger a default.

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6. Events of Default

• Clearly understand what constitutes a default (e.g., missed payments, insolvency).
• Review the grace period, if any, before a default is enforced.
• Know the lender’s remedies in case of default (e.g., demand immediate repayment, enforce security).

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7. Governing Law and Jurisdiction

• Confirm the legal system governing the agreement.
• Determine where disputes will be resolved (e.g., courts or arbitration, and which location).

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8. Representations and Warranties

• Statements made by the borrower regarding their legal capacity, financial condition, and ownership of collateral.
• Inaccuracies can give the lender grounds to terminate or call in the loan.

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For inquiries or consultation reach out to our team of advocates by leaving your details vide the "Comment"section Tab herein. 

 

Can Foreigners Buy Land in Kenya?

In Kenya, foreigners can own land, but under a leasehold system, not freehold, with a maximum duration of 99 years. They cannot own agricultural land directly, except through a Kenyan-incorporated company and with approval from the Land Control Board.

Kenya’s land ownership laws come from the Constitution of Kenya (2010), the Land Act (2012), and other statutes, such as the Land Registration Act (2012). These laws regulate land tenure and transactions, including those involving foreigners.

Foreigners can buy land in Kenya, but they face specific restrictions. Article 65 of the Constitution limits foreign ownership to leasehold land for up to 99 years. Foreigners cannot own freehold land, but they may lease land for extended periods. 

• Leasehold Tenure:

Foreigners can hold land on a leasehold basis, which means they have the right to use the land for a set period (up to 99 years) and pay rent to the landowner (the lessor). 

• No Freehold Ownership:

Foreigners cannot own land outright, meaning they don't have the absolute right to own the land for perpetuity. 

• Agricultural Land Restrictions:

Foreigners are generally barred from directly owning agricultural land, unless they do so through a Kenyan-incorporated company. This means a foreign individual or company would need to be registered in Kenya as a company to own agricultural land, and the transaction would still require approval from the Land Control Board. 

• Leasehold Limits:

The maximum lease term for foreign ownership is 99 years, and the lease is renewable for a similar term, with the lessor having first priority. 

• Land Ownership Limits:

There are limitations on how much land a foreigner can own, including a limit of 100 acres outside of Special Economic Zones (SEZs). 

• Need for Approval:

Foreign land acquisitions require approval from the National Land Commission (NLC), ensuring compliance with Kenyan laws. 

• Land Use Regulations:

Foreigners must ensure their land use aligns with local zoning regulations and obtain any necessary permits for specific uses.