How to remove a caution on land in Kenya: withdrawal, the Registrar and the courts

A caution on your title can stop a sale, a charge for a loan or a transfer to family. The registry will not register most dealings while it stays on the register. This guide explains how to remove a caution on land in Kenya under the Land Registration Act 2012, and what to do if the person who lodged it will not cooperate.

What a caution is (and what it is not)

A caution is an entry on the land register by someone who claims an interest in the land. It warns the Land Registrar and anyone searching the title not to register dealings that would defeat that claim without first hearing from the cautioner.

Under the Land Registration Act 2012, people who may lodge a caution include someone who:

• claims a right to obtain an interest in the land, for example a buyer who has paid a deposit
• is entitled to a licence over the land
• has presented a bankruptcy petition against the proprietor

A caution is not proof that the cautioner owns the land or has a valid claim. It is a holding measure. It is also different from two other entries you may see on a search:

If your search shows a restriction or inhibition, the steps below do not fully apply. Speak to an advocate.

Step 1: Find out exactly what was lodged

Before you do anything else, get the facts.

1. Do an official search on the title, on Ardhisasa where your registry has gone online or at the land registry. Our guide on how to do a land search in Kenya walks through both routes.
2. Note the entry number, the date and the name of the cautioner.
3. Apply at the registry to see or get copies of the caution documents. A caution must be in the prescribed form, and the Registrar may have required the cautioner to support it with a statutory declaration; check what claim it describes and the cautioner's contact details.

This matters because the right route depends on who the cautioner is and why they lodged it. A former buyer whose deal collapsed is a different problem from a relative claiming a share of family land, or a stranger with no apparent connection to the property.

Step 2: Ask the cautioner to withdraw it

The quickest and cheapest route is a voluntary withdrawal. The Act allows a cautioner to withdraw a caution.

Typical situations where this works:

• A buyer lodged a caution while paying instalments, and has now been refunded or the sale has completed.
• A lender, family member or business partner lodged it during a dispute that has since been settled.
• A caution was lodged in error.

How it usually works:

1. Contact the cautioner, ideally through an advocate, and ask in writing for a withdrawal.
2. If money or other terms are involved, put the settlement in a signed agreement that says the cautioner will withdraw the caution once paid.
3. The cautioner signs the prescribed withdrawal form. Their signature normally has to be witnessed in the way the regulations require.
4. Lodge the signed withdrawal at the registry or through Ardhisasa, with copies of the cautioner's ID and KRA PIN, and pay the registration fee.
5. Once registered, do a fresh official search to confirm the caution no longer appears.

Never pay a cautioner in cash without a signed agreement and a signed withdrawal form handed over at the same time. Use an advocate's client account if possible.

Step 3: Apply to the Land Registrar for removal

If the cautioner refuses, cannot be traced or ignores you, the Land Registration Act 2012 lets any person interested in the land apply to the Registrar to remove the caution.

The process in outline:

1. Write to the Land Registrar for the registry where the land is registered, asking for removal of the caution. Explain your interest (for example, as registered proprietor) and why the caution should go. Attach a copy of the search, your ID, KRA PIN and any supporting documents, such as proof that a buyer was refunded.
2. The Registrar may serve a notice on the cautioner, warning that the caution will be removed when the period stated in the notice ends. The Act does not fix the period itself; it is the time stated in the notice. Confirm the current requirement with the registry.
3. If the cautioner does not object within that time, the Registrar may remove the caution.
4. If the cautioner objects in writing, the Registrar must give both sides an opportunity to be heard, then make an order. Bring documents to the hearing: sale agreements, receipts, letters and any court papers.
5. Follow up and do a fresh search once the Registrar issues a decision.

If you disagree with the Registrar's decision, you can take the matter to the Environment and Land Court; the Act provides for the Registrar or any aggrieved person to state a case for the court's opinion. Take legal advice as soon as the decision is made, as time limits may apply.

Step 4: Go to the Environment and Land Court

The Act also allows a caution to be removed by court order. The Environment and Land Court hears disputes over land, including applications to remove cautions.

Court is usually the right route when:

• the cautioner claims ownership or a share of the land, and the real dispute is about who is entitled to it
• there is already a case in court about the land
• you have lost before the Registrar and want to challenge the decision
• you have suffered loss and want compensation

The Act provides that a person who lodges or maintains a caution wrongfully and without reasonable cause can be liable to pay compensation to anyone who suffers damage as a result. An advocate can advise whether your facts support such a claim.

Court cases take longer and cost more than the other routes. Ask your advocate for a written estimate of fees and a realistic timeline before filing.

Documents checklist

Have these ready, whichever route you take:

• copy of the title deed or certificate of lease
• recent official search showing the caution
• copy of the caution and any accompanying documents from the registry
• your national ID or passport and KRA PIN certificate
• passport-size photographs, if the registry asks for them
• evidence for your position: sale agreement, refund receipts, settlement agreement, correspondence
• for a withdrawal: the signed withdrawal form, plus the cautioner's ID and KRA PIN copies
• if you act through someone else: a registered power of attorney

What it costs

Registration fees for withdrawing or removing a caution are prescribed by the Cabinet Secretary responsible for lands under the Land Registration Act, and they change from time to time. Check the current fee on Ardhisasa or at the registry before you pay, and always get an official receipt. Advocate's fees depend on the route: a simple withdrawal costs much less than a contested hearing or a court case. For the wider picture of charges when you sell or transfer, see the cost of transferring land in Kenya.

Red flags and practical tips

• A caution you did not know about. If a stranger has cautioned your land, it may be a sign of an attempted fraud or a fake sale using your title. Read land fraud red flags in Kenya and consider reporting to the police and the registry.
• Anyone offering to "clear" the caution informally. A caution comes off only by registered withdrawal, Registrar's order or court order. Ignore offers to make it disappear for a fee.
• Buying land with a caution on it. Do not pay the purchase price until the caution is formally removed and a fresh search confirms it. Make removal a completion condition in the sale agreement.
• Ignoring Registrar's notices. If you are the cautioner, respond within the deadline or the caution can be removed.
• Diaspora owners. Keep your address for service and contacts current, and use a registered power of attorney so someone can act for you quickly.

Frequently asked questions

Can I sell land that has a caution on it?

You can sign a sale agreement, but the registry will generally not register the transfer while the caution remains unless the dealing is consistent with the cautioner's claim or they consent. In practice, buyers and banks will insist on removal first.

Does a caution expire on its own?

Do not assume it will. A caution stays on the register until it is withdrawn or removed by the Registrar or the court. Check the current position with the registry or an advocate.

How long does removal take?

It depends on the route. A voluntary withdrawal can be quick once the form is lodged. A Registrar's removal involves a notice period and possibly a hearing. A court case can take much longer depending on the court's diary.

Can the same person lodge another caution after removal?

The Act lets the Registrar refuse a further caution by the same person in respect of the same matter. If it happens, raise it with the Registrar and your advocate, and keep records of the earlier removal.

Sources

• www.parliament.go.ke/sites/default/files/2017-05/Land_Registration_Act.pdf