The Land Registration Act gives any person having interest in land the right to register a Caution against it.
When a Caution is registered on that Land, no one is allowed to engage in any dealings on that land without first notifying the person who registered the Caution. Such dealings include; transfers, leases or charges.
Every Caution must be accompanied by an Affidavit and must be in the prescribed form. If not, the Registrar has every right to reject the Application. The Registrar can also reject the Application if the Caution is unnecessary. It should be noted that one does not have to give notice to the Proprietor of the land before applying for a Caution.
Once an application is made, the Registrar shall give Notice to the owner of the land letting them know that the Caution has been registered. After the Notice is sent, no disposition on the land will be registered at the Registry unless with the express consent of the Cautioner (the person who registered the Caution) or by an Order of the Court. In the Notice given to the owner of the land, the period the Caution is supposed to be effective should be clearly indicated.
A caution can be withdrawn by the Cautioner, a Court Order or by the Registrar. The Registrar can only withdraw or cancel a caution if the period indicated in the Notice has lapsed and will communicate to the Cautioner informing him that the Caution will be withdrawn on the expiration date. The Cautioner has the right to dispute this withdrawal and the Registrar shall call all parties with interest in the land for a hearing and make orders as he deems fit.
Upon removal or withdrawal of a Caution, the registration shall be cancelled immediately. Second Cautions by the same Cautioners will not be registered by the Registrar. It should also be noted that lodging a Caution wrongly or without reasonable cause is prohibited and any person found liable will be subjected to pay the Proprietor damages and compensation.
Other ways of protecting properties in Kenya is registration of Inhibitions and Restrictions.
An Inhibition is an order given by the Court prohibiting the registration of any disposition on a piece of Land for a particular period or till an occurrence of an event. The Order, after being made, is sent to the Registrar for registration. The registration of an inhibition shall not be cancelled except in the following cases—
(a) on the expiration of the time stated in the inhibition.
(b) on proof to the satisfaction of the Registrar of the occurrence of an event stated in the inhibition.
(c) on the land, lease or charge being sold by a charge, unless such sale is itself inhibited; or
(d) by a consequent order of the court.
In order to avoid fraudulent dealings on a piece of Land, the Registrar can make an order (hereinafter referred to as a RESTRICTION) prohibiting or restricting dealings with any particular land, lease or charge. This order can be made suo moto or by the application of anyone having interest on that piece of land. The restriction can be effective for a period specified by the Registrar, until the occurrence of a particular event; or until a further order is made. The Registrar can also give an Order of Restriction once it is noted that the power of the owner of the land to deal with the land is restricted.
The Restriction can be withdrawn or removed upon application of anyone with interest in the land or on the registrar’s own motion. The proprietor of the Land can also apply to the Court for a restriction to be withdrawn. The application must be sent to the Registrar first and the Court may order the restriction to be removed, varied, or other order as it deems fit, and may make an order as to costs.
Land is a very important and valuable asset therefore a target for conmen and frauds. Contact us at info@maina-partners.com or 0707077777 for further assistance on this topic.
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