Legal Procedures, Understanding the Law

Process of Placing a Caution or Caveat on Land in Kenya

A caution or caveat is a legal notice registered against a property’s title to protect an individual’s or entity’s interest in the land. It serves as a warning to prevent dealings (e.g., sale, transfer, or use as collateral) without notifying or obtaining consent from the person who lodged it. Governed by the Land Registration Act, 2012, and the Land Act, 2012, cautions and caveats are critical tools for safeguarding property rights, preventing fraud, and maintaining the status quo during disputes. While the terms are often used interchangeably, caveats typically reflect a stronger legal claim than cautions.

Purpose of Cautions and Caveats

1. Protection of Interests: Safeguard the rights of individuals with a claim to the land (e.g., co-owners, beneficiaries, or creditors).

2. Fraud Prevention: Prevent unauthorized transactions by notifying potential buyers or lenders of existing claims.

3. Dispute Resolution: Maintain the status quo while legal disputes are resolved.

4. Public Notice: Alert third parties to prioritize the cautioner’s or caveator’s interest.

Legal Framework

i) Land Registration Act, 2012:

It governs the registration of cautions (Sections 71–75) and outlines procedures for lodging and removing them.

ii) Land Act, 2012:

It provides for caveats, particularly for contractual or registered interests.

iii) Constitution of Kenya 2010:

It ensures the right to own property and protects against arbitrary deprivation.

Who Can Lodge a Caution or Caveat?

Any person or entity with a demonstrable interest in the land can lodge a caution or caveat, including:

- Co-owners or joint proprietors.

- Beneficiaries in succession or trust cases.

- Parties to a sale agreement or lease.

- Financial institutions with a charge or mortgage.

- Individuals with a contractual or legal claim (e.g., a nephew proving inheritance rights).

The process of placing a caution or caveat involves the following steps, typically facilitated by a qualified advocate:

A. Establish Interest in the Land:

- The cautioner/caveator must demonstrate a legitimate interest, such as ownership, contractual rights, or inheritance claims.

For example, a nephew can place a caution if they can prove a legal entitlement (e.g., through a will or intestate succession).

B. Prepare Required Documents:

1. Prescribed Form: Complete Form R.L. 22 (for cautions) as per the Land Registration Act, 2012.

2. Affidavit: Provide a sworn affidavit explaining the nature of the interest in the land (e.g., co-ownership, pending litigation, or loan agreement).

3. Title Deed or Number: Submit a copy of the title deed or the title deed number.

4. Identification Documents: Include certified copies of the national ID/passport and KRA PIN of the cautioner/caveator.

For corporate entities, include a certificate of registration/incorporation and IDs/passports of directors/partners.

C. Submit Application to the Land Registrar:

- Lodge the documents at the relevant Land Registry (where the property is registered) or through the Ardhisasa platform.

- Pay the prescribed government fee, which is typically minimal but varies by case. Legal fees for advocate assistance may apply.

D. Notification to Proprietor:

- The Registrar issues a written notice to the registered proprietor, informing them of the caution/caveat.

- As long as the caution/caveat remains registered, no disposition (e.g., sale, transfer, or charge) inconsistent with the cautioner’s interest can be registered without their consent or a court order.

E. Registration of the Caution/Caveat:

- The Registrar verifies the documents and, if satisfied, registers the caution/caveat in the land register.

- The caution/caveat appears on the title during land searches, alerting third parties to the claim.

Effects of a Caution or Caveat

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.

  • Restriction on Dealings:

It prevents registration of transactions (e.g., sale, transfer, or mortgage) without the cautioner’s consent or court order.

  • Legal Protection:

It ensures the cautioner/caveator is notified of any proposed dealings, protecting their interest.

  • Temporary Measure:

It maintains the status quo during disputes or pending resolution of claims.

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.’

Removal of a Caution or Caveat

A caution or caveat can be removed through:

i)Withdrawal by the Cautioner/Caveator:

The person who lodged the caution/caveat submits a formal request to the Registrar, accompanied by consent documents or a court order.

ii) Court Order:

A court may order removal if the caution/caveat is deemed invalid or malicious.

iii) Registrar’s Action:

  • Another interested party can apply for removal. The Registrar issues a notice to the cautioner, warning that the caution/caveat will be removed after a specified period (e.g., 30 days) unless the cautioner objects.

  • If no objection is raised, the Registrar removes the caution/caveat.

  • If the cautioner objects, the Registrar holds a hearing and makes a decision, which can be appealed in the Environmental and Land Court within 30 days.

Risks and Consequences of Wrongful Lodging

  • Liability for Damages:

Lodging a caution/caveat without reasonable cause is unlawful under Section 75 of the Land Registration Act, 2012. The cautioner may be liable for damages to the proprietor or affected parties (e.g., lost sales opportunities).

  • Legal Penalties:

Malicious or frivolous cautions/caveats can lead to court-ordered compensation.

  • Removal by Registrar:

The Registrar can remove a wrongful caution/caveat after due process.