What is a Caution?

• The Land Registration Act, 2012 defines caution as a notice in the form of a register to the
  effect that no action of a specified nature concerning the land in respect of which the notice
  has been entered may be taken without first informing the person who gave the notice or a
  caveat.
• A caution may either:
  a) Forbid the registration of any dispositions and the making of new entries concerning the
  land in respect of which the notice has been entered.
  b) Forbid the registration of dispositions and the making of entries to the extent expressed in
  the caution.

Who May Lodge a Caution?

• A caution forbidding the registration of dispositions of the land, lease, or charge concerned
  and the making of entries affecting the land lease or charge may be lodged with the Land
  Registrar by:
  a) A person who claims the right, whether contractual or otherwise, to obtain an interest
  in any land, lease, or charge, capable of creation by an instrument registrable under
  the Land Registration Act, 2012.
  b) Is entitled to a license.
  c) Has presented a bankruptcy petition against the proprietor of any registered land,
  lease, or charge.

How to Lodge a Caution?

• A person who wishes to register a caution is to lodge an application in Form LRA 67 set out
  in the Sixth Schedule of the Land Registration (General) Regulations, 2017.
• The caution is to be registered in the property section of the register.
•  The Registrar thereafter issues a notice of caution upon receipt of an application for the
  registration of a caution in Form LRA 68 (Notice of Caution) set out in the Sixth Schedule of
  the Land Registration (General) Regulations, 2017.
•  A caution is to be in the prescribed form, and the Registrar may require the cautioner to
  support the caution by a statutory declaration.
•  The caution is to be registered in the appropriate register i.e. the register of cautions.
•  The Registrar thereafter is to give notice, in writing, of caution to the proprietor whose land,
  lease, or charge is affected by the caution

Can the Registrar reject a Caution?

•  The Registrar may reject a caution that is unnecessary or whose purpose can be affected by
  the registration of an instrument under the Land Registration Act, of 2012.

What is the Effect of a Caution?

• Any disposition that is inconsistent with the caution is not to be registered while the caution
  is still registered except with the consent of the cautioner or by the order of the court.

Withdrawal of Caution

•  Cautions may be withdrawn by the cautioner or removed by order of the court or, by order of
  the Registrar.
•  A person who wishes to withdraw a caution is to apply for the withdrawal of the caution in
  Form LRA 69 set out in the Sixth Schedule of the Land Registration (General) Regulations,
  2017.
•  The Registrar, on the application of any person interested, may serve notice on the cautioner
  warning the cautioner that the caution will be removed at the expiration of the time stated in
  the notice.
• If a cautioner does not raise any objections at the expiry of the time stated, the Registrar may
  remove the caution.
• However, if the cautioner objects to the removal of the caution, the cautioner shall notify the
  Registrar, in writing, of the objection within the time specified in the notice, and the
  Registrar is to give the parties an opportunity of being heard, make such orders as the
  Registrar considers fit, and may in the order provide for the payment of costs.
• The notice of objection to the removal of caution is to be in Form LRA 72 Notice of Objection to Removal of a Caution set out in the Sixth Schedule to the Registrar.
• It is important to note that after the expiry of thirty days from the date of the registration of a transfer by a chargee in the exercise of the chargee’s power of sale under the law relating to land, the Registrar shall remove any caution that purports to prohibit any dealing by the chargee that was registered after the charge under which the transfer has been effected.
• The registration of caution is canceled on the withdrawal or removal of caution and any liability of the cautioner is not affected by the cancellation.

How to Remove a Caution?

• An application for the removal of caution is to be made in Form LRA 70 Application to
  remove a caution set out in the Sixth Schedule of the Land Registration (General)
  Regulations, 2017.
•  The Registrar will then issue a notice to remove a caution to the cautioner, in Form LRA 7l
  Notice of Intention to Remove a Caution set out in the Sixth Schedule.

Second Caution in Respect of the same matter

•  Section 74 of the Land Registration Act, 2012 empowers the Registrar to refuse to accept a
  further caution by the same person or anyone on behalf of that person concerning the same
  matter as a previous caution.

What is a Wrongful Caution?

Section 75 of the Land Registration Act, 2012 provides that any person who lodges or
maintains a caution wrongfully and without reasonable cause is liable, in an action for damages at the suit of any person who has sustained damage, to pay compensation to such
person.

• References

Land Registration Act, 2012
Land Registration (General) Regulations, 2017.

• Contributors
  Robert Muoka – Advocate of the High Court of Kenya

Should you have any questions regarding the information in this article, please do not
hesitate to contact us.