Dipak Laxmichand Shah (Suing on Behalf of The Estate Of Lalitaben Laxmichand Virchand Shah Deceased) v Primix Enterprises Limited & Registrar of Titles Mombasa

21-day written notice to the other party prior to rescinding the agreement and in the event it was the first defendant who opted to rescind the agreement, then the plaintiff had the right to retain the deposit of the sum of Kenya Shillings 2,700,000/- as liquidated damages. 2. The first defendant agreed and confirmed that he had inspected the suit property and was purchasing the same in the condition it was in. The first defendant further agreed that he was entering into the agreement solely as a result of his own survey and inspection on the basis of the agreement and not in reliance on any warranty, representation or confirmation, either written, oral or implied made by or on behalf of the plaintiff. The deposit was paid on 12th February 2019. However, in breach of the terms of the agreement the first defendant failed to pay the balance of the purchase price within the stipulated time. Consequently, on or about 13th May 2019 and 31st July 2019, the plaintiff issued the first defendant with notices demanding payment of the balance of the purchase price. On 9th September 2019 the first defendant paid an additional amount of Kenya shillings 3,300,000/- towards the partial settlement of the balance of the purchase price. In a further breach of the terms of the agreement vide a letter dated 11th January 2021 the first defendant rescinded the agreement without providing any grounds for the rescission and demanded a refund of the entire amount paid towards the purchase price being Kenya Shillings 6,000,000/-. Owing to that rescission, the plaintiff refunded the sum of Kenya Shillings 4,000,000/- to the first defendant and retained Kenya Shillings 2,000,000/- as liquidated damages. On 25th February 2022 the plaintiff conducted an official search over the property and was issued with certificate of postal search showing that a caution dated 6th April 2021 had been lodged by the first defendant who was claiming a purchaser’s interest. On 25th May 2022 the plaintiff applied for removal of the caution to the second defendant and the second defendant on 10th June 2022 issued a Statutory Notice of Intention To Remove A Caution notifying the first defendant that the MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 2 of 20

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caution would be removed within 30 days from the date of posting of the notice unless a Notice Of Objection To Remove The Caution was furnished to his office. The first defendant failed to lodge an objection within the prescribed period of 30 days and has refused or neglected to remove the caution. On 5th September 2022, the plaintiff visited the second defendant’s office and was presented with the Notice of Objection of removal of the caution allegedly lodged on 10th June 2022, which was a date that preceded the posting date of the notice of intention to remove the caution. 3. On 19th September 2022, the 2nd defendant conducted a hearing on the removal of the caution and thereafter rendered her decision on 4th October 2022 and declined to remove the caution on the ground that the suit property was the subject of an active suit to wit Mombasa ELC Number 414 Of 1996. The plaintiff also alleges collusion between the defendants for the allegedly unlawful lodging and maintaining of a caution on the suit property without any reasonable cause. He states that he has been unable to exercise his proprietary rights over the suit property due to the caution and that he has suffered loss. He seeks the following orders in his plaint: a. A mandatory order compelling the second defendant to remove the caution dated 6th April 2021 placed over the suit property; b. A permanent injunction to restrain the first defendant or its servants or its agents from otherwise interfering with the suit property; c. Damages for wrongfully lodging and maintaining the caution dated 6th April 2021 over the suit property without reasonable cause; d. Interest on (c) above at court rate above from the date of the judgment until payment in full; e. Cost of an incidental to this suit. f. Any other relief this court this may wish to award. MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 3 of 20

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Defence Of the First Defendant 4. The first defendant filed a defence dated 22nd May 2023 denying the plaintiff’s claim. In that defence the agreement for sale is admitted. However, the second defendant claims that the plaintiff represented himself as the registered owner of the suit property as at the time the first defendant expressed its interest to purchase it. It is admitted that the first defendant rescinded the sale agreement through a letter dated 11th January 2021 and that it lodged a caution dated 6th April 2021 against the title to the property. It is expressly admitted that the 1str defendant received a statutory Notice of Intention to Remove Caution; that hearing was conducted by the second defendant on 4th October 2022 when it came to the fore during the proceedings that the suit property was the subject of an active suit which is Mombasa ELC 414 of 1996. The first defendant denied allegations of collusion or wrongful lodging and maintaining of a caution on the suit title. It maintained that it lodged the caution since it was claiming a purchaser’s interest after learning that the plaintiff had failed to disclose that the suit property was the subject of an active case being Mombasa ELC 414 Of 1996. The defendant blamed the plaintiff for entering into a sale agreement when he was well aware that the subject matter land was the subject of active litigation; for receiving part of the purchase price while aware that he could not successfully complete a transaction before the conclusion of the active suit; for retaining part of the purchase price despite being issued with a rescission notice; for purporting to have refunded part of the purchase price to the first defendant while he had not, and for failing to disclose that the active suit had a direct impact on the transaction. It was claimed by the first defendant that this suit is res sub judice Mombasa ELC 414 Of 1996 Mohamed Bwana Bwanaadi and Another Versus Rishad Abdulrehman Khator. Jurisdiction of the court was denied. MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 4 of 20

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Reply To the First Defendant Defence 5. The plaintiff filed a reply to the first defendant’s defence dated 2nd June 2023 in which it joined issues with the first defendant’s defence. The plaintiff stated that this court has jurisdiction to determine the present matter and that the issues in Mombasa ELC Number 414 of 1996 are not the same as those raised in the presence suit. The plaintiff’s conclusion in that pleading was that the present suit is therefore not res subjudice. Defence Of the Second Defendant 6. The second defendant filed a defence dated 24th January 2023 through Jacob Mpunga Mkala, Senior State Counsel, in which she denied the plaintiff's claim. In the defence, the second defendant stated that if at all the application for removal of caution was declined, then the same was done in a procedural, legal and fair manner upon hearing of both parties and the reasons given for the refusal to remove the question were justified and cogent. The second defendant admitted that an objection was launched which led to the hearing and determination by the Land Registrar; that it is proper for the caution to stay in place until the issue of the purchaser’s interest is resolved to avoid any loss to any party. Reply To Defence of The Second Defendant 7. The plaintiff filed a reply to defence dated 31st January 2023 and joined issues with the second defendant’s defence. The Preliminary Objection 8. The Preliminary Objection threatened was never raised as one, and the suit proceeded to hearing on the merits where each party called their respective witnesses. MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 5 of 20

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Evidence Of the Parties 9. Hearing commenced on 2nd April 2025 when PW1, Dipak Laxmanchand Shah testified orally and adopted is witness statement dated 31st October 2022 as his evidence- in -chief and produced documents as per the list dated 31st October 2022 as PExh 1- 22 and the documents in the supplementary list dated 17th February 2023 as PExh 23, 24 and 25. He also produced the documents in the second supplementary list dated 23rd October 2024 as PExh 26 and 27. His evidence closely followed the contents of the plaint. He showed the court the original title to the land in his name; he stated that a Vesting Order was registered against the title on 2nd August 2017, vesting the land to the plaintiff as administrator of Lalitaben Laxmichand Shah. He stated that though the first defendant never completed his part of the bargain, there was no reason given; that he only received a letter, PExh 9, saying that the transaction could not go on, and which demanded a refund of the paid purchase price. That letter never mentioned any squatters or any active litigation. His advocate refunded Kenya Shillings 3,300,000 vide PExh10 on 29th April 2021. Hs further evidence is that a further Kenya Shillings 700,000/- was refunded which left him with Kenya Shillings 2,000,000/= only. He maintained that he ought to have retained Kenya shillings 2,700,000/- as per Clause 11.2 of the contract since it was the second defendant who had terminated the agreement. According to PW1, he never received any Notice of Objection to The Removal of Caution. However, he produced a Notice of Hearing as PExh 20. He admitted that the hearing was conducted and a ruling was delivered (See PExh. 22) By that ruling dated 4th October 2022 the Land Registrar declined to remove the caution citing the existence of Mombasa ELC Cause Number 414 Of 1996. He maintained that the court decision does not mention the presence of any squatters on the suit land; that it does not determine ownership; that he was just a witness and not a party MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 6 of 20

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in that case. However, he admitted that his father was a party in the case. That ELC 414 of 1996 was dismissed with costs. PW1 maintained that Clause 10.4 confirmed that the purchaser had agreed to having inspected the suit property and also to having agreed to purchase the same as it was; that he was therefore entitled to hold 10% being the deposit paid. 10. Upon cross-examination by Mr Kirui, he admitted that as at the date of the sale agreement that is 26th February 2019, he was aware of the Case Number 414 Of 1996 and that his lawyer disclosed its existence to the first defendant. He confirmed that he has never lived on the suit property and that he last visited it in 2018 before the execution of the agreement. He maintained that there are no squatters on the suit property. He confirmed the receiving the letter of rescission on 13th January 2021. He maintained that even as at that date the status on the suit land was still unchanged; that he has had a surveyor establish the beacons; that under Clause 7 the giving of vacant position was his duty, but he still maintained that as at the time of execution of the agreement the land was still vacant; that he returned Kenya Shillings 700,000/not out of obligation but out of good faith or out of a "good heart"; that a reminder was sent by his lawyer on 13 th May 2019; by 13th May 2019 90 days had not elapsed, but by 31 st July 2019, 90 days had elapsed, with 4 days extra, for him to give notice; that the notice he gave was not a 21day notice but a 7-day notice; that after that notice, his lawyer received the further Kenya Shillings 3,300,000/- on 9th September 2019. However, in his evidence, PW1 alleged that in doing that, the lawyer was not acting as per his instructions since he had informed him not to accept any more funds. He admitted that no other letter was issued terminating the agreement after that. However, he maintained that the first defendant was not entitled to issue a termination notice. He learned of the caution on 25th February 2022, that is 2 years after the agreement. He denied that he breached the agreement by failing to deliver vacant possession. MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 7 of 20

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He maintained that he had the right to hold on to Kenya Shillings 2,700,000/- but out of sheer goodwill he released Kenya Shillings 700,000. He identified the cautioner as a director of the first defendant, who had verified that he had seen the condition of the property at the time of the sale and confirmed that there were no squatters on the land. He denied that there was any mosque on the land. He maintained that the case that was pending was only about the ownership of the land and his father was the defendant who was fighting for the interest that he is now holding, and the case ended up with a judgment issued on 25th September 2024. He informed the court that the purchaser was verbally informed of that case by the plaintiff’s former advocate. He admitted that there is a document that the purchaser had sought to be signed but he and his advocate declined. He maintained that he was not ready to refund any money and pointed out that from the year 2019 up to the present day he has not been able to enjoy the land. 11. Upon cross-examination by Miss Lutta for the second defendant, he stated that by the time of the Land Registrar’s ruling on the caution, the judgment in the civil case had not been issued. Defence Evidence 12. DW1, Abdul Karim Hassan, testified on 2nd October 2025 and adopted his witness statement dated 14th June 2023. He also produced documents as 1DExh -1D Exh1- 25. His evidence is that there are mosques houses and coconut trees on the land; that by the time the land was being sold to the first defendant it was not vacant; that there was a family residing on the land even as at the time of sale and even now; that after the 3 months completion period, the land still had people on it. Besides, the plaintiff never told the first defendant there was a case pending in court. DW1 informed the company that there was dispute within the family regarding the suit land; he stated that he is a member of MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 8 of 20

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the Land Control Board serving the area; that he knows the family members of the plaintiff’s family. 13. Upon cross-examination by Miss Mbwana, he stated that he is not aware whether judgment was issued in the case. He stated that he does not have any authority to come and testify in court on behalf of the first defendant and he did not have photographs of the houses on the land. He was not a party to the agreement between the plaintiff and the first defendant. 14. DW2 Michael Bramwell Ochieng, testified on the same date as DW1. He adopted his witnessed statement dated 14th June 2023. His evidence is that he is a property manager for some of the first defendant’s properties; that it is part of his duties to ensure legal compliance. According to him the first defendant lodged an objection DExh19. To his understanding, there was an intention to remove a caution which was based on a purchaser’s interest; that the first defendant had already paid Ksh 6,000,000/- to the plaintiff; that the money has not been refunded. 15. Upon cross-examination by Miss Mbwana, he stated that the first defendant did not rescind the agreement; that there was an outstanding issue of vacant possession. He could not confirm the sum that the plaintiff remained with. However, he maintained that Kenya Shillings 2,700,000/= was supposed to be retained by the plaintiff. 16. Upon cross-examination by Mr Munga, he stated that though it was the advocate who was involved in lodging of the question it was DW2 who appeared before the Land Registrar on behalf of the first defendant at the hearing; that there were 4 parties at the hearing including the plaintiff’s representative and the first defendant’s representative. 17. Upon re-examination by Mr Kirui, he denied that Kenya Shillings 3,300,000/- was rejected by the plaintiff. He stated that the defendant rescinded the contract upon discovery of the existing litigation. That at MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 9 of 20

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the time of the rescission the plainmtiff had not disclosed some pertinent issues touching on the property. Second Defendant’s Evidence 18. DW3, Sheila Soita, testified on behalf of the second defendant on 10th December 2025 and adopted her witness statement dated 20th April 2023. She stated that she is a Land Registrar at Mombasa Land Registry, and she had worked there for 4 years. Her evidence is that the suit land is registered in the name of Laxmichand Shah and a caution was placed on it on 6th April 2021 on the basis of a purchaser's interest and that after the hearing of the dispute by the Land Registrar, the parties were referred to court since the Registrar was not able to act in view of the pendency of some litigation. She stated that the caution still exists over the suit property. 19. Upon cross-examination by Mr Kirui, she maintained that the existence of a purchaser's interest is a valid reason for the registration of a caution, and that in the present case, the caution met all the parameters for registration and was registered in good faith; that at the hearing the cautioner appeared together with a witness but the presence of DW2, was not recorded though he attended the hearing. DW2 however did not orally participate in the hearing process and so there was no need to record his presence since he never gave any primary evidence. 20. About cross-examination by Mr Mbwana, DW3 maintained that the caution was lodged by the first defendant; that a Notice of Registration was issued, although she admitted that there is no evidence of service of that Notice of Registration of Caution in the records. However, she maintained that when the plaintiff applied for the removal of the caution and notice was sent on 10th June 2022 at 2:13 p.m.; that the notice had been brought by the cautioner at 2:00 p.m.; that service was through post. She admitted that posting of the Notice for Removal Of Caution could not possibly have taken place before the lodging of the application MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 10 of 20

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for removal. She maintained that there was no collusion between the defendants in maintaining the caution. She maintained that the first defendant was not party to the Mombasa Case Number 414 Of 1996 and that the mother Plot Number 2716 was affected by that case. 21. Upon re-examination by Ms Waswa, she maintained that the proper procedure was followed during the registration of the caution and there was no malice on the part of the second defendant. Submissions 22. The plaintiff filed written submissions dated 14th April 2026. The second defendant filed written submissions dated 31st March 2026. This court has upon a perusal of the record found no submissions filed on behalf of the first defendant. I have considered the filed submissions in the process of preparation of the present judgment. Analysis And Determination 23. It is admitted by both the plaintiff and the first defendant that they entered into a contract sale of the suit land. It is admitted that thing deal fell through with the consequence that refunds were made. It is also admitted by all sides that the second defendant lodged a caution dated 6th April 2021 over the suit property which is still so lodged against the title to date. The issues arising for determination in the present case are as follows: a. Whether the 2nd defendant’s lodging of a caution against a suit title was justified; b. Whether the court should order the removal of the caution dated 6th April 2021 registered over the suit property. c. Whether damages should issue for wrongful lodging and maintaining of a caution over the suit property and if so, against which party; MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 11 of 20

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d. Whether the first defendant and his agents should be restrained by way of a permanent injunction form in any way interfering with the suit property; e. Whether interest on damages should be awarded; f. Who should bear the costs of the suit? 24. Regarding the first issue as to whether the 2nd defendant’s lodging of a caution against the suit title was justified, this court notes that the 1 st defendant’s simple responses were that the caution lodged was in response to the discovery that there was a dispute and a pending suit regarding the suit land and that the land had squatters on it. Section 71 of the Land Registration Act prescribes the persons who are entitled to lodge a caution over title to land as follows: 71. Lodging of cautions (1)A person who— (a)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 this Act; (b)is entitled to a licence; or (c)has made an application for a bankruptcy order against the proprietor of any registered land, lease or charge.” 25. However, in the present dispute, the agreement the parties executed on 26th April 2019 was categoric at Clause 10 that: “10. The purchaser agrees and confirms that: 10.1 he has inspected the property and purchases the same with full knowledge of its actual state and condition and shall take the property as it stands. 10.2 He has entered into this agreement solely and as a result of his own survey and inspection as aforesaid and on the basis of the terms of this agreement and not in reliance upon any warranty representation or confirmation either written or oral or implied or made by or on behalf of the vendor; …” MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 12 of 20

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26. The plaintiff’s evidence is that he discovered the registration of the caution on 25/2/2022, that is, long after it was registered. According to DW3’s credible evidence, the caution had been registered on 6/4/2021, about two years after the execution of the sale agreement which provided for a 30-day completion period. The plaintiff has demonstrated by way of evidence that the 1st defendant rescinded the sale contract between the parties vide a letter dated 11/1/2021. That letter did not give much details but it indicated that the 1st defendant was demanding the refund of all the monies paid to the plaintiff on the ground that “ …the transaction can no longer proceed.” The plaintiff agreed to the rescission and on 29/4/2021, he refunded the sum of Kshs 3,300,000/-. The banking documents produced in evidence show that was the case, and on 4th May 2021 the refund was acknowledged by the 1 st defendant’s advocates in a letter of even date that called for the refund of all the monies in full. A further Kshs 700,000/- was refunded to the 1st defendant on 11/7/2021 pursuant to the 1st defendant’s advocate’s request. Even without the refunds being effected, the rescission by the 1 st defendant became effective. However, the demand for refunds and the actual receipt of the refunds reinforced the evidence that by the letter dated 11/1/2021, the 1st defendant was serious in its intention to rescind, and that it had effectively rescinded the agreement. Upon that rescission there ceased to be any enforceable sale between the parties; all that remained was the enforcement of the penalties set out under the contract. There was therefore no hope that the sale could ever succeed after the letter of rescission. Consequently, the purchaser’s rights to transfer of the suit property to it became extinct. Only the relics of refund and penalties remained of the contractual relationship the parties had. It is the considered view of this court that such rights to have the property transferred to the 1st defendant having been extinguished on 11/1/2021, it was unfair and improper and unjustified for the 1 st defendant to lodge a caution against the title held by the plaintiff. All it should have done was MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 13 of 20

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to pursue the refund through direct pressure against the plaintiff or through the legal process to its ultimate conclusion. It is axiomatic then that the answer to the second issue listed for determination herein above as to whether the court should order the removal of the caution dated 6 th April 2021 registered over the suit property must be answered in the positive. 27. Regarding whether damages should issue for wrongful lodging and maintaining of a caution over the suit property and against which party, this court notes that the maintenance of the caution was effective in depriving the plaintiff access to transactions over the suit property for a lengthy period of time. The caution is still in place as at the time of writing this judgment, the 2nd defendant having considered the application for its removal and declined such removal on the premise that there was litigation pending before court concerning the suit property. It emerged at the hearing before the 2nd defendant that the 1st defendant vehemently defended the maintenance of the caution on the record while the plaintiff urged that there was no reasonable cause that had been established to warrant such maintenance, the 1st defendant having breached the terms of the sale agreement, and part of the purchase price having been refunded, and Kshs 2,000,000/- having been forfeited to the plaintiff as penalty for breach. This court is of the view that the whole history of the transaction was laid before the Land Registrar by the parties and especially the plaintiff. On its part the 1st defendant cited the inability to take up vacant possession due to squatter presence on the suit land and also the pendency of litigation that threatened the existence of the mother title as a distinct parcel as the reasons for the rescission. The director of the 1st defendant, one Mr. Mike Mbuvi Sonko Kioko was cited by the Lant Registrar as having stated that “…even if he pays the (plaintiff) three times the purchase price, it was impossible to get vacant possession.” The fact that he gave such evidence was indicative that he had concluded that, just as expressed in the letter of rescission, that the MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 14 of 20

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sale could never go through. It therefore defeated reason that he would still urge, and that the Land Registrar would accept his argument in the circumstances of the case, that the caution should remain registered over the suit title. That should not have been the case because all the parties were in agreement as at the time of the hearing of the dispute that the sale would not proceed. In fact, the opinion of this court is that the 1 st defendant ought to have on that basis withdrawn the caution under the provisions of Section 73(1) of the Land Registration Act as it was obvious to him that it was no longer maintainable. That never happened and the matter was left to determination by the Land Registrar, with the result that she made the error of declining to remove the caution on the very basis that the contract it was based on had been rescinded. 28. The issue that remains is whether the mere existence of the litigation cited by the 1st defendant before the Land Registrar justified the maintenance of the caution on the suit title. On that issue the summary finding is that no order of the court handling that litigation, ordering that the caution be maintained over the suit title, had been availed to the Land Registrar; thus, both the cautioner and the plaintiff having demonstrated that they were no longer interested in pursuing the sale, it was incumbent upon the Land Registrar to rely on that fact and conclude in favour of removal of the caution in order that the parties be free from the grip of one another. If removal had been ordered, that would have released the plaintiff to transact over the suit property as he wanted. It is the view of this court that the presence of litigation over the suit property was irrelevant consideration in this case since the parties had made it clear that they would not proceed with the sale. The Land Registrar thus erred in relying on the existence of the litigation cited by the 1 st defendant to decline to order the removal of the caution. However, the Land Registrar was discharging her quasi-judicial duty under Section 73 (4) of the Land Registration Act which provides as follows: MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 15 of 20

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“(4) 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 shall, after giving the parties an opportunity of being heard, make such order as the Registrar considers fit, and may in the order provide for the payment of costs.” 29. The consequence of the above provisions is that, when read with the provisions of Section 73(1) which provides for removal of caution by order of the court, and in view of the fact that the plaintiff was directed by the Land Registrar’s ruling to seek a remedy from court, this court considers the Land Registrar, unlike the 1st defendant, to be immune from liability for damages for wrongful lodging and maintaining of a caution over the suit property in the circumstances. However other circumstances raised by the plaintiff pointing to misconduct in the land registry militate against holding the Land Registrar free from liability solely on the basis that she was conducting her quasi-judicial duty and was entitled to rule on the dispute one way or the other. The plaintiff points out that he was not served with notice of registration of caution. DW3 maintained that though the caution was lodged by the first defendant and a Notice of Registration issued, there is no evidence of service upon the plaintiff of that Notice of Registration of Caution in the records. It was upon the 2 nd defendant to establish that she had complied with the provisions of Section 72 LRA to the effect that: “72. Notice and effect of caution (1) The Registrar shall give notice, in writing, of a caution to the proprietor whose land, lease or charge is affected by the caution.” 30. The case against the Land Registrar is that she refused to remove the caution despite the fact that no notice of objection to the removal of caution was served within 30 days from the date the notice to remove caution was dispatched by post. 31. The Land Registrar’s position in this matter is compounded by the fact that her own records are in a mess that betrays her: she stated that her MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 16 of 20

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records show that the plaintiff applied for the removal of caution, a Notice of Intention to Remove the Caution was sent at 2:13 pm on 10/6/2022 to the 1st defendant but the notice of objection to the removal of caution was received on the same day at 2:00 pm. She had no explanation for that discrepancy. She admitted as follows in her oral evidence on crossexamination by Ms. Mbwana: “Ordinarily posting (of a notice of intention to remove a caution) can not take place before the lodging of the application for removal of caution. The converse is surprising.” 32. Despite that discrepancy, the Land Registrar still maintained that there was no collusion between her office and the 1 st defendant. Upon reexamination by Ms. Waswa, she admitted that the application for removal of caution was lodged by the plaintiff on 25/5/22; however, she never gave evidence that could absolve her office from an impression that it was engaged in wrongdoing with regard to the dispatch or receipt of the two notices respectively. The embarrassing impression created by the recorded hours of dispatch/receipt on the two notices is that the 1 st defendant lodged a notice of objection to removal of caution even before the Notice of Intention to Remove Caution was sent to it. However, it can not be established clearly, and the plaintiff has not attempted to do so, whether or not the recording of conflicting hours of dispatch and receipt of the notices were due to the usual inefficiencies in the land registries or due to some deliberate mischief. However, one extenuating factor in this mess is the fact that the parties were heard on the merits in the caution dispute. The plaintiff first became aware of the registration of the caution on 25/5/22 and promptly applied for its removal on the same day. There is no allegation of any deliberate delay by the 2 nd respondent to hear the application for the removal of the caution between the date of the lodging of the application (25/5/22) and the date of hearing that is 19/9/2022. In fact, no details are given as to what happened in between those two dates. Consequently, this court finds that the plaintiff has not established MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 17 of 20

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any deliberate failure, refusal or neglect on the part of the Land Registry that could be deemed to have had any effect on the plaintiff’s exercise of his rights over the land for which the land registry should be penalized. The plaintiff having proceeded to kick off the legal mechanisms provided for the removal of the caution rather than directly demand from the 1 st defendant that he withdraw the same, the expenditure of time resources on the resolution of the dispute as to whether the caution ought to remain or be removed ought to be considered as a necessary consequence in the process of seeking justice. In any event the hearing on caution removal took place soon thereafter on 19th September 2022 and the ruling was delivered two weeks later on 4/10/2022. 33. Therefore, considering the fact that all the parties were heard and the determination made on the merits as to whether the caution ought to be removed or not, and that the plaintiff’s right to approach this court for the removal of caution remained unhindered, no obvious loss on the plaintiff’s part can be attributable to the mix up of the hour of dispatch of notice to remove caution and the 1st defendant’s objection to caution removal, for which the Land Registrar can be held liable. The Land Registrar is thus not liable for wrongful lodging or maintenance of a caution over the suit title as alleged. Consequently, damages in this case ought to be awarded only as against the 1st defendant for wrongful maintenance of caution over the plaintiff’s title. Since there was no proper ground for such caution, this court finds the conduct of the 1st defendant to be arbitrary and laced with malice and its maintenance of the subject caution amounted to trespass to property owned by the plaintiff. 34. In in the case of Dr. Joseph N.K. Arap Ng'ok v Moijo Ole Keiwua & 4 others [1997] eKLR the case of it was held as follows: “Section 23(1) of the Act gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 18 of 20

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upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact, the Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.” 35. In Atemba (Suing as a trustee and overseer Pastor of Embassy of Faith Worldwide Church) v Damani Drums Limited & another (Environment & Land Case E245 of 2021) [2024] KEELC 5915 (KLR) (16 September 2024) (Judgment) Neutral citation: [2024] KEELC 5915 (KLR) where no evidence was tendered to demonstrate that the offensive activities by the Plaintiffs had incapacitated the Defendants from proceeding with any intended development, and where the trespass had occurred for less than three years, the court awarded Kshs 5,000,000/= being damages for trespass to each of the proprietors of two different land parcels respectively. In Malindi ELCLC NO. E056 OF 2024 Charles Waithima (Suing on Behalf of And as The Donee of Power of Attorney from Edwin Wagura Kimondo) vs Sammy Chembe & 2 others, the court ordered that the defendants should jointly and severally pay to the plaintiff the sum of Kshs 2,000,000/= as general damages for trespass to his land. 36. In the present case there being no justification for the caution, and the 1st defendant’s utterances at the hearing before the Land Registrar having been indicative that it was aware it had no claim to the title after the rescission, I find that such damages ought to attract interest till settled in full. In this court’s view, the 1st defendant kept the plaintiff off any transactions regarding his land for a period of about 5 years. The sum of Kshs 5,000,000/- against the 1st defendant only being punitive damages for unjustified and wrongful registration and maintenance of a caution over the plaintiff’s land title would suffice as a deterrent against such arbitrary and malicious conduct. 37. The next issue for determination is whether the first defendant and his agents should be restrained by way of a permanent injunction form in any MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 19 of 20

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way interfering with the suit property. Again, it goes without saying that the rescission of the contract by the 1 st defendant disentitled the 1st defendant from in any way claiming a purchaser’s interest in the suit land. The demand for refund and the acceptance of the refund and demand for more refund reinforces this view. The upshot is that the injunctive order sought by the plaintiff is well deserved. 38. The 1st defendant occasioned the present suit by maintaining a caution wrongfully over the suit title hence it ought to solely bear the costs of the present suit. 39. In the end this court finds that the plaintiff’s claim against the 1 st defendant has merit and judgment is entered for the plaintiff against the 1st defendant only and prayers no (a), (b), (c), (d), and (e) in the plaint dated 31st October 2022 are granted as prayed. In respect of prayer no (c), I hereby award the plaintiff the sum of Kshs 5,000,000/- (Kenya Shillings Five Million Only) against the 1 st defendant only being punitive damages for trespass due to unjustified and wrongful registration and maintenance of a caution over the plaintiff’s land. It is so ordered. Dated, signed and delivered at Malindi on this 1st day of October, 2026. MWANGI NJOROGE JUDGE, ELC, MALINDI. MLDELCLCE061/26-JDGT/DF-01.11.22/FABM-16.01.24/FH-17.04.24/LH-17.04.26/DJ 01.10.26F . Page 20 of 20

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