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MagistrateDismissedMiscellaneous Application dated 10/2/2023

Mulu v Land Registrar Mkueni County & another (Miscellaneous Civil Application E001 of 2023) [2025] KEMC 255 (KLR)

Senior Principal Magistrate's Court, Makindu
7 October 2025
2,302 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a land caution application because the applicant used the wrong legal procedure instead of properly appealing the Land Registrar's decision.

What this practically means

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Executive summary

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The applicant, claiming to be a son of Muia Mulu (deceased), a former member of Nguu Ranch, sought orders directing the Land Registrar Makueni to lodge a caution over land parcel Makueni/Nguu Ranch/21 and an inhibition against further dealings, alleging that a 2007 survey led to registration in his father's favour but that the title was ultimately issued to the 2nd respondent. The 1st respondent filed no response. The 2nd respondent, asserting he purchased the land from Lucy Kanini Musau (who claimed to have bought it from the applicant's father in 1996), opposed the application on grounds of locus standi, limitation and absence of evidence of fraud, later stating he had sold the land to Benjamin Munuve Makau. The court framed three issues and, after examining section 71 of the Land Registration Act and Rules 35, 37 and 80 of the Land Registration (General) Regulations, held that a rejection by the Registrar must be formal and in the prescribed Form LRA 22; the applicant produced only an unsigned annotation, so no decision of the Registrar existed to challenge. The proper remedy upon rejection was to appeal to the County Registrar, the Chief Land Registrar, or directly to the Court, with only the applicant and Registrar as parties; joining the 2nd respondent was wrong and irregular, and any assertion of substantive rights required a substantive suit. The inhibition prayer also failed for want of evidence of any ongoing inquiry. The application was dismissed with costs to the 2nd respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court can direct the Land Registrar Makueni to lodge a caution on land parcel No. Makueni/Nguu Ranch/21 in favour of the applicant
  2. 2.Whether the court can issue an order of inhibition stopping further dealings on the said land
  3. 3.Who should bear the costs of this application

Key legal issues

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01

Whether the court could direct the Registrar to lodge a caution

Holding

No - there was no formal decision of the Registrar rejecting the caution application, so there was nothing for the court to opine on, and the wrong procedure was adopted

Reasoning

The court held that a rejection by the Registrar must be formal and in the prescribed Form LRA 22. The applicant annexed only an unsigned, unnamed annotation and no Form LRA 22. Without formal communication there is no decision by the Registrar, and without a decision there can be no appeal or case stated for the court's opinion. On this ground alone the application fails.

p. 5
02

Whether an order of inhibition should issue

Holding

No - the applicant adopted the wrong procedure, and the claimed purpose (pending inquiry) was not supported by evidence of any ongoing inquiry after over two years

Reasoning

The court noted the applicant even made an additional prayer for an inhibition instead of filing an appeal or a substantive suit. The affidavit claimed the caution was needed pending an inquiry into how the title was obtained, but no evidence of any inquiry was attached and none was alleged in the two years since filing, suggesting the applicant sought a caution in perpetuity. The application was therefore untenable.

p. 6
03

Proper parties to an appeal from a caution rejection

Holding

Only the applicant and the Registrar; the registered proprietor should not have been joined in this application, which should have been an appeal

Reasoning

Under Rules 35 and 80 of the Land Registration (General) Regulations and ss.71-72 of the Act, the only persons involved in registering a caution are the applicant and the Registrar; the proprietor is merely notified. The proprietor could be a respondent only in an appeal from removal of a caution under s.80. Joinder of the 2nd respondent was therefore wrong and irregular, and the application ought to have been an appeal.

p. 6
04

2nd respondent's objections: locus standi, limitation and fraudulent title

Holding

The court did not determine the merits of title; the 2nd respondent's framing of the issue as fraudulent acquisition was a misdirection not arising in the case

Reasoning

The court disregarded the 2nd respondent's submissions on fraud, holding the issue did not arise. Locus standi and limitation were raised by the 2nd respondent but the court disposed of the application on procedural grounds without making findings on those objections or on the underlying ownership claims of the parties.

p. 2

Legal principles established

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  • A caution can only be lodged through the Land Registrar, who may reject a caution that is unnecessary or whose purpose can be effected by registration of an instrument (s.71 Land Registration Act).
  • Rejection of an application by the Registrar must be formal, in the prescribed Form LRA 22; absent formal communication there is no decision capable of challenge.
  • A person aggrieved by the Registrar's exercise of power must state a case for the opinion of the Court under s.86(1) of the Land Registration Act, or appeal under Rule 37 to the County Registrar, the Chief Land Registrar, or directly to the Court.
  • In an appeal from a rejection of a caution application, the only parties should be the applicant and the Registrar; joinder of the registered proprietor is wrong and irregular, and a party asserting substantive rights over land must file a substantive suit.

Court orders

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  1. 1.The application dated 10/2/2023 is dismissed with costs to the 2nd respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

YS
Y.A ShikandaSenior Principal Magistrate
majority

Wrote the judgment

Jurisdiction invoked
Sections 71 and 86(1) of the Land Registration Act; Rule 37 of the Land Registration (General) Regulations (appeal from Registrar's decision to the Court)

Relief refused

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Direction to the 1st respondent to lodge a caution over Makueni/Nguu Ranch/21

No formal rejection of the applicant's caution application by the Registrar was proved, and the proper route was an appeal under Rule 37, not this application

p. 5

Inhibition stopping further dealings, registration and transactions over Makueni/Nguu Ranch/21

The applicant adopted the wrong procedure and no inquiry or investigation into the title was shown to be ongoing

p. 6

Costs

Dismissed with costs to the 2nd respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In my view, for the court to render its opinion, there must be, at the very outset, a formal decision by the Registrar. That decision is lacking in this case. On that ground alone, the application ought to fail.
p. 5Requirement of formal rejection before challenge
The rejection by the Registrar must be formal and in the prescribed form.
p. 4Form of Registrar's rejection
It therefore follows that upon rejection of the application to lodge a caution, the applicant ought to have filed the matter for the opinion of the court.
p. 5Correct remedy under s.86(1) LRA
If the applicant had wanted to assert his rights over the parcel of land in issue, he ought to have filed a substantive suit.
p. 6Wrong procedure; need for substantive suit
The upshot of the above considerations is that the application is devoid of merit. I proceed to dismiss the same with costs to the 2nd respondent.
p. 6Disposition

Issues in the judgment

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material

The judgment does not state the full names of the applicant, the 1st respondent (Land Registrar) or the 2nd respondent; parties are identified only by role.

minor

The judgment does not state the case/file number, only the date of the miscellaneous application.

minor

The judgment does not name the court; only the delivery venue 'Makindu' and the magistrate's rank appear, and the Land Registration Act is inconsistently cited as 'cap. 300' in Form LRA 22.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mulu v Land Registrar Mkueni County & another (Miscellaneous Civil Application E001 of 2023) [2025] KEMC 255 (KLR)", Case Analysis (2025). Miscellaneous Application dated 10/2/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/255/eng@2025-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.