Article 40 of the Constitution of Kenya guarantees every person the right to acquire and own property, including land, and protects against arbitrary deprivation of such property. However, land in Kenya often becomes the subject of disputes, fraud, and competing claims, which may compromise the enjoyment of this constitutional right. To address such risks, the Land Registration Act, No. 3 of 2012 (“LRA”) and the Land Registration (General) Regulations, 2017 provide three protective mechanisms: cautions, restrictions, and inhibition that operate as legal safeguards against unlawful or fraudulent dealings in land.
This legal alert outlines the nature, process, and effect of each mechanism, with reference to the LRA and accompanying Regulations, while drawing a clear distinction among them.
CAUTIONS
Section 2 of the LRA defines a caution to include a caveat. A caution is a legal notice registered against the title of land, preventing any dealings in respect of that land without notifying the cautioner. It operates as a warning to third parties about the existence of another party’s claim or interest over the land.
In Njoroge v Karuku (Civil Appeal E069 of 2022) [2024] KECA 553 (KLR) The Court of Appeal affirmed that where a caution was registered, no disposition inconsistent with it can be registered unless the cautioner consents or a court order is obtained. In this case, the appellant failed to prove that the caution had been duly removed rendering the subsequent registration unlawful.
Who Can Lodge a Caution?
- A person claiming a right to the land (e.g., a buyer who has paid a deposit, a beneficiary under a will, or someone with a contractual right of use).
- A person entitled to a licence.
- A person who has applied for a bankruptcy order against the registered proprietor.
Process of lodging a caution
- Application: The applicant completes Form LRA 67 accompanied by a Statutory Declaration and supporting evidence.
- Review: The Land Registrar reviews the documents to assess validity of the claim.
- Registration: If valid, the caution is entered in the property register and the cautioner is notified.
- Notice to Proprietor: The Registrar issues Form LRA 68 notifying the proprietor of the caution.
Effect of a Caution
While a caution is registered, no disposition (transfer, lease, or charge) inconsistent with the caution may be registered without the cautioner’s consent or a court order.
Wrongful Cautions
A person who lodges or maintains a caution without reasonable cause is liable to pay compensation to any person who suffers loss.
Removal of a caution
A caution can be removed through:
Withdrawal by the cautioner- Cautioner may submit a formal request to the Registrar to remove caution using Form LRA 70. The Application is accompanied by consent documents or a court order.
Court order- Court may upon application by interested party order removal of caution if it is deemed invalid or malicious.
Application to the Registrar: Application is done using Form LRA 70 accompanied by a copy of the title deed, a copy of the registered caution, and identification documents for both the applicant and the cautioner. Registrar notifies the cautioner in Form LRA 71, who may object by Form LRA 72. A hearing may be convened using Form LRA 73 before a final decision is issued in Form LRA 74.
INHIBITIONS
Under Section 68 of the LRA, an inhibition is a court order that prohibits registration of any new dealings relating to land, a lease, or a charge, either for a specified period or until the occurrence of an event. Unlike a caution, which can be lodged directly with the Registrar, an inhibition must be sanctioned by the court.
In Luka Ruteere & 2 others v Marcella Kinaitore Mwimbi [2022] KEELC 990 (KLR) the court held that:
“an inhibition is in essence similar to a prohibitory injunction barring the registered owner of the land under dispute from enjoying his ownership rights under Article 40 of the Constitution. Therefore, a court issuing such an order must be satisfied there are good grounds to warrant issuance of such an order since like an interlocutory injunction, it preserves the property in dispute pending trial”.
Who can lodge inhibition?
Inhibition can be lodged by an interested party who obtains the order from court.
Process of Registration of inhibition
- Court Application: The applicant files a Notice of Motion supported by an Affidavit in court.
- Court Order: upon examination the court grants the order. The order must be duly sealed and specifically reference the parcel of land.
- Registration: The order is lodged with the Registrar using Form LRA 66, and the inhibition is entered in the register.
Effect of inhibition
As long as an inhibition remains in force, no transaction inconsistent with it can be registered.
Cancellation of inhibition
The registration of inhibition shall be cancelled on the following grounds-
- Upon expiry of the specified time.
- Proof of occurrence of a stated event.
- Upon sale by a chargee (unless inhibited).
- By consequent court order.
RESTRICTIONS
Under Section 76 of the LRA, a restriction is an order made by the Land Registrar limiting certain dealings on land. Unlike a caution (lodged by individuals) or inhibition (granted by court), a restriction is imposed administratively by the Registrar, either on his/her own motion or on application by an interested party.
In Matoya vs. Standard Chartered Bank (K) Ltd & Others [2003] 1 EA 140, the court emphasized that restrictions serve to prevent fraud or improper dealings.
Republic v Land Registrar & Another; Wamae & Another (ELC JR E001 of 2022). This case involved Ex-parte Applicants challenging the registration of a restriction on their land. They argued that the restriction was placed without due process, as no notice was given in accordance with Section 77 of the LRA. The Applicants were not provided with a reasonable opportunity to respond or make representations. The court emphasized that due process, including notice and the right to be heard, is essential when placing restrictions on land, as outlined in Article 47 of the Constitution.
Who Can Lodge a Restriction:
- The Land Registrar (proactively): To prevent fraud, illegal dealings, or to safeguard public interest.
- An interested party (on application): Such as individuals or entities with a legal interest in the land.
- Government bodies: For statutory purposes including compulsory acquisition, investigations, or regulatory compliance.
Registration of Restriction
- Application made in Form LRA 75.
- Registrar issues a notice of intention to register a restriction using Form LRA 76.
- Proprietor is notified in writing.
Effect or Restriction
An instrument inconsistent with a restriction cannot be registered while the restriction subsists, unless ordered by the Registrar or the court.
Removal of Restriction
- By Registrar on application or on own motion, after giving affected parties an opportunity to be heard.
- By court order upon application of a proprietor or interested party.
Summary: Caution vs. Inhibition vs. Restriction
Aspect | Caution | Inhibition | Restriction |
Who Applies | Any person claiming an interest (e.g., buyer, beneficiary, licensee, creditor). | Interested party through a court order. | Land Registrar (own motion) or interested party. |
Authority | Land Registrar (Form LRA 67 + statutory declaration). | Court order, then registered by Land Registrar (Form LRA 66). | Land Registrar issues after inquiry; Court may also order. |
Purpose | Safeguards claimed interest; prevents dealings without notice to cautioner. | Freezes dealings until court or event resolves dispute. | Prevents fraud/improper dealings; may restrict all or some transactions. |
Duration | Until withdrawn, removed by court, or cancelled by Registrar. | For set time, event occurrence, or until lifted by court. | For set time/event, or until varied/removed by Registrar or Court. |
Effect | No inconsistent dealing registered without consent or court order. | Absolute bar to inconsistent registrations. | Restricts dealings unless conditions of restriction are met. |