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making of entries in the register relating to the land without the cautioner’s consent or until the caution has been withdrawn by;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.