KENYAN LAW ON CAUTIONS AND CAVEATS IN LAND TRANSACTIONS
Land is the most important and valuable factor of production in Kenya. 80% of the total population relies on agricultural produce, and it is considered as a source of personal wealth and power. This is why quite a number of times people protect and fight for it as it is the major source of livelihood.
One method in which people protect their interest in property is through making use of Caveats and Cautions. This article explores the law on caveats and cautions in Kenya.
MEANING OF CAVEAT
The word caveat means a warning or proviso (something said as a warning, caution, or qualification). The lodging of a caveat over a property is a way of telling anyone who wants to deal with the property to be aware of the fact that someone else’s interest already has priority. Therefore if there is a caveat on the property, whoever wants to perform any kind of dealing like buy, sell, lease out or anything is made aware of the fact that someone else already has interest in that land.
MEANING OF A CAUTION
This is a notice in the form of a register to the effect that no action of a specified nature in relation to the land in respect of which the notice has been entered may be taken without first informing the person who gave the notice.
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making of entries in the register relating to the land without the cautioner’s consent or until the caution has been withdrawn by;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.’
SECOND CAUTION IN RESPECT TO THE SAME MATTER
The registrar may refuse to accept a further caution by the same person or anyone on his behalf in relation to the same matter as a previous caution.
CONCLUSION
Caveats and Cautions play a very important role in protecting property. It is however important that everyone understands when to use them and when not to use them, in order to avoid incurring legal liability.
THIS WAS HELPFUL. THANK YOU. YOU JUST DID NOT MENTION THE NOTICE PERIOD THE REGISTRAR GIVES TO THE CAUTIONER UPON APPLICATION FOR WITHDRAWAL OF A CAUTION.
Kindly reply . If your son is demanding a portion of his father’s land to inherit but the father bought it by himself I.e the father did not inherit that land. How does the father protect it ?
Dear Mike
Many thanks for your question. If the father is alive, he can put a caution on the land so that no transaction is done on it.
Kind regards.
Hi my mum brought a land the consent letter is 20years,so how can she acquire the land
Hello Carol, I trust you’re well.
Please elaborate more on the question for assistance or reach us on 07 43 235 923 or 07 23 313 833
Looking forward to being of service you.
and if the father has passed away
No, you don’t caution your own property, since the purpose of a caution is to prevent the registered owner himself from selling it. It would be the son cautioning the land so that the father doesn’t sell it.
By the way, a son doesn’t have a claim against his grandfather’s land directly and can only inherit what his father leaves him.
Is the caution/caveat ‘permanent’ or does it lapse automatically after a certain period?
If land is owned by two parties and one party decides to put caution on the land without the others consent.What steps are taken?
Hello Monica,
In that case, the other party can move the court to have the caution lifted before any transaction is done. Once the court finds that there were insufficient grounds for the caution, it shall lift it.
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You really make it seem so easy with your presentation but
I find this matter to be actually something that I think I would never understand.
It seems too complex and very broad for me. I am looking forward for your next post,
I’ll try to get the hang of it!
How to I deal with my father’s brother who is trying to grab my Father’s share and still the land is in the name of my grand father,kindly help me
Hello John, thank you for reaching out to us.
In response to your enquiry, Is your father alive and if he is, he can go ahead and place caution on the land to prevent the brother from grabbing it.
For more assistance, kindly reach us out on 07 43 235 923 for 07 23 313 833..
Looking forward to being of service to you.
1. Does a caution have an expiry term or is it indefinite as long as the interests of the cautioned remains unserved ?
2. What happens to the caution upon the death of the cautioner?
A caution is indefinite until it is lifted by court or otherwise removed.
What happens if the cautioner dies without revoking the caution?
If the cautioner dies without revoking the caution, the caution will only be removed through an order of the court.
Hi,
What is the cost of putting a caution or a caveat on a property in Kenya
It costs on average Kshs 20,000.
How much does it cost to lodge a caveat in kenya
Hello Philip, it costs about 20,000/=
Here is a case where parents gave on their trust, land to their maried daughter (settlement) by then was ill and died later, the parents decided to change names to read husbands because the wife had died in care for the children. After 10 years, the husband decided to marry the second wife though children were negative, the husband sold in total the land given to by his parents as share and went ahead to deciesed first wife land given to him by first wife parents with second wife. The husband later died also, second wife is alive. The late husbands land was sold with no agreement, second wife insist she didn’t signed, first wife kids are not aware of any transactions. Do the second wife have a right over the first wife land though registered under late husband? Do the husbands land in question sold with no documentation have basis? Thanks
Dear Joseph
Your question requires a comprehensive response as it would depend on many facts. Kindly let us know if you would be interested in a proper consultation on the same.
Can a grown up child caution parents property and what interest will they claim?
Hello
A grown child can put caution on parents property, if he or she demonstrates enough interest in the land.
Clearly understood. But I may ask if big and small lands, and lands in Areas where land is expensive and those in Areas of low land cost are cautioned at the same cost.
Hello Jairus,
The cost difference is negligible. The major difference being whether land is in a municipality or not.
What is the implications if someone buys a land with a caution.
Hello Susan
My name is Elvis Abenga from Begi’s Law Offices & Chambers. If you buy land that is subject to caution, you risk having the entire purchase nullified by court if the cautioner goes to court. The best process is to have the caution removed first before purchase.
Hi. I would like to know if your nephew can place a caveat on your land if you are childless?
Hello Nicholas,
Anyone can place a caution on land for as long as it is demonstrated that the person has some kind of interest in the land. So your nephew can do that only if he can demonstrate that interest.
Hi, which is the best measures to take for the land to be restricted from being used as a loan collateral leave alone being sold?
We are trying to place a caution on a piece of land but at the lands office are saying the lands has no records(N/R).Please help
Hi,
Can you lodge a caution on someone’s property if they owe you money?
Hello Elvis, I took a loan, gave the money to my husband to purchase a plot, he promised that the title will come under his name and my name. Finally I realize he put his name only, we later separated I went and put a cautionary the land registrar’s office. He wants to sell that plot but when people do a search they are told there is a caution. So he wrote the letter to lands registrar requesting that the caution be removed. we were summoned, went for hearing, after we disagreed, the registrar tells us to wait for 14 days as he do research then he shall let us know the verdict. But he told us that he can decide to remove the caution or not. Any party who doesn’t be satisfied can proceed to court. Now my question is,can he remove the caution,am really worried. Kindly answer me
Good morning Faith,
We are sorry for the matter at hand.
Please attach your phone number so that our front office can give you a call in the course of the day to book you for an appointment with one of our lawyers.
We look forward to touching your life.
Same case here 0722225626. I’d really want to understand how to deal with this.
Dear Mercy
Many thanks. We will reach out to you.
Hello can one sell trees on a land that’s under caution?
Good morning John,
Thank you for reaching out to us to assist you on your matter.
To answer your question, that would depend on the type of caution put on the land.
Dear John
The answer to your question would be no, for the law states that nothing should be interfered with in a land that’s on caution. However, you can apply for a court order for the caution to be temporarily lifted.
Hello am Stanley, my grandfather was died, he left two brothers to own the land, out of those two the second born is my father who is arrested for a raping case last year July until today he is in kakamega rumande and am in nakuru for but I heard that her brother have sell our land without any of our family member’s signatures in a purpose of withdrawal for a case of my dad, and he have not done so. So what steps will I take?
Hullo there,
We placed a caution on property together with my siblings and would like to update our mailing addresses. The Registrar says all of us have to present ourselves in person and explain why we need to change the address. What is the official process of updating such information? Please advise.
Hallo someone has built houses on my plot,now am told that court can rule him to stay on because he has stayed for long is that possible?
Dear Judy,
The court indeed can use the doctrine of adverse possession to direct that he stays. However for adverse possession to be claimed, he must have stayed in the land for about 12 years uninterrupted and with your full knowledge.
Kindly share your number and we will reach out to you to help you with eviction proceedings.
Kind regards.
Hi,
Can a father sell land that his son has build his house on. And can that be a probable cause to put caution ?
Hello Bee, thank you for reaching to us,
If the father is the legal owner of the land, he has every right to do disposition towards the land but your remedy is you can put caution on the land because your have interest (the house) on it.
For more assistance, Kindly reach us out on 07 43 235 923 or 07 23 313 833.
Looking forward to being of service to you.
What if you purchase land prior caution
Hello George, thank you for reading through the article.
To answer your question, allow me to ask:
1: Were you the one who placed the caution and if no, then as the rightful owner of the land, you can make an application to the land registrar for the caution to be revoked.
For more information and assistance, Kindly reach us out on; 07 43 235 923 or info@begislaw.com
My number 0718165322,how can I reach you plz…….my mom bought a 1.5acre parcel of land in 2014 for me and my brother,until now we haven’t been able to process our own tittle deed.
At the time of purchase the tittle deed (of 9acre)beared the sellers father’s me,my mom expressed interest and the tittle was transferred to sellers name and his late brothers wife.Both shared equally 4.5 each, my mom bought 1.5acre from the sellers portion.We tried last year to get our own tittle deed since we have our number of land which was begotten from the sellers portion,but because the brothers wife placed a caution on her portion ie 4.5acre….it has been easy since the the seller and her brothers wife are not in good terms, what shall we do please……0722576779.
Hello and good morning. Please enlighten me on how to go about eviction from agricultural land where a person is a relative to the legal owner of the land.
Hello Mwangi, thank you for reading through the article and taking your time to reach our to us,
The legal owner of the land is the only person who can evict you from the land unless the person evicting you has power of attorney, For More assistance and directions, Kindly reach out out to us on; 07 43 235 923 to book you in for an appointment with out advocates.
Looking forward to being of service to you.
Hello, a financial institution has put a caution on land I bought yet the land is not charged with them. Do they have grounds to put a caution and how can I go about it to lift it.
Joseph
0704355403
Hello Joseph, I trust that you’re well.
Please visit the land registrar to find out more, the land would probably be under a charge with the bank or do an official search to establish everything about the land.
Hello my name is Nicholas. My sister was helping me get my tittle deeds but she included her name in the tittle. Again without my knowledge, she went ahead and put the tittle deed under custody. Now if I ask am told that the land is safe. How can you help me get back my tittle deeds?
Hello Nicholas ,
Sorry to hear about the land ownership name confussion, following the matter one of our lawyers is able to discuss the matter with you we offer both virtual and in-person consultation to reach us kindly call
0743-235923 or email us -info@begislaw.com
We look forward to touching your life.
After putting a caution how long does it take for land registry to do the filing
Hello Peter, I trust that you’re well.
This will be determined by the location of the land, Let us know where the land is for more assistance.
Thank you for taking your time to read through our article.
my late father bought land and died before he finished the amount, we we were 3 sons, we raised the money and cleared the arrears, now one of the brother went to the owner of the land and confided secretly and changed the title deed to his name without the family knowing anything, how should we go about this, how can we handle this
Hello Finlay, I trust you’re well.
You have to go to the registrar of Land and put a restriction on the land then file a case at the ELC.
Fore more information, Kindly reach us on 07 43 235 923 or 07 23 313 833.
Looking forward to being of service to you.
How can One lodge a complaint against county land register for allocating one’s ancestral land to another person? r
Hi,my father passed on in 2015 at the age of 110 years,he left behind 7 brothers with our land shared equally.Some of the brothers have shown a lot of apatite in selling part of the parcel of land given to then.I feel like they might sell all of what they have and get their families into problems by creating land shortage and also may lead to a squatters.
Can i apply for a caution to prevent them from selling the land though its their heritage but still under one title deed?
Hello John, Thank You for reaching out to us,
Kindly assist us with your number and we will book you in for a consultation meeting with our advocates for more information and assistance on Land matters. You can also reach us via our phone number 07 95 797 897/ 07 43 235 923.
We look forward to being of service to you.
Hi,my father passed on in 2015 at the age of 110 years,he left behind 7 brothers with our land shared equally.Some of the brothers have shown a lot of apatite in selling part of the parcel of land given to then.I feel like they might sell all of what they have and get their families into problems by creating land shortage and also may lead to a squatter-ship.
Can I apply for a caution to prevent them from selling the land though its their heritage but still under one title deed?
Hello John,
Sincere condolences for the passing of your father, would you like to schedule an appointment with one of our advocates to further discuss the matter. We offer both virtual and in-person consultations, you can reach us through 0743-235923 or email us – info@begislaw.comand we get back to you