Owning land or any interest in property in Kenya is a significant investment, and protecting these rights is essential. Article 40 of the Constitution of Kenya, 2010, guarantees the right to acquire and own property, and the Land Registration Act (LRA) CAP 300, 2012, provides mechanisms to safeguard these rights from fraud, illegal dealings, trespass, or unauthorized transfers.
Among the key protective tools available to landowners and interested parties are:
- Cautions
- Restrictions
- Inhibitions
This article explains each mechanism and guides you on how to use them to secure property interests in Kenya.
What are Property Rights and their Constitutional Safeguards in Kenya?
Property rights in Kenya are legally enforceable rights to possess, use, enjoy, and dispose of property, whether immovable (land and things permanently attached to it) or movable (chattels).
The property right is a fundamental human right enshrined and protected under Article 40 of the Constitution of Kenya, 2010.
- Article 40 (1) states that every person has the right, either individually or in association with others, to acquire and own property of any description and in any part of Kenya.
- Article 40 (2) provides safeguards against arbitrary deprivation of property. It mandates that no one shall be arbitrarily deprived of property of any description, or of any interest in, or right over, any property.
What mechanisms exist for safeguarding property rights in Kenya?
The Land Registration Act (LRA), 2012, and the Land Registration (General) Regulations, 2017 provide mechanisms, cautions, restrictions, and inhibitions to protect landowners and interested parties from fraud, unlawful dealings, or disputes. The goal is to ensure that no interest in land can be unlawfully transferred, assigned, or extinguished without due process.
What is a caution under the Land Registration Act (LRA)?
A caution is a formal notice lodged in the Land Register to warn third parties that the land owner’s title is subject to an unregistered interest or claim held by the cautioner (the person lodging the caution), and that there should be no dealings on that land (transfer, lease, charge) without notifying the cautioner.
What is the purpose of a caution?
It serves as a warning to third parties that another person, such as a beneficiary, co-owner, buyer, or creditor, has a claim or interest in the land. Thus, it prevents fraudulent or unauthorized transactions, stops dispositions without the cautioner’s knowledge, and acts as a temporary protective measure pending dispute resolution.
Who can apply to lodge a caution?
Any person with a legitimate claim, right, or interest in the property, including contractual parties, beneficiaries under a trust, co-owners, financial institutions, or someone seeking to protect spousal or inheritance rights, can lodge a caution.
Essentially, anyone with a legitimate claim or interest may lodge a caution.
What is the effect of a caution?
Once registered, the Registrar cannot register any disposition (transfer, lease, or charge) affecting the land unless the cautioner has consented in writing, or the caution has been removed by the Registrar or court order. The caution itself does not create a superior interest, but rather preserves the status quo pending resolution of the cautioner’s claim.
How is a caution removed?
A caution may be removed by:
- The Cautioner (voluntary withdrawal)
- The Registrar, after:
- Giving notice to the cautioner
- Hearing both parties
- Being satisfied that the caution is unnecessary or invalid
- Court Order, directing removal
If a cautioner refuses to remove a caution that is wrongfully issued, they may be liable for damages.
What is a restriction under the Land Registration Act?
A restriction is an entry in the register that prohibits or limits the registration of any disposition (transfer, charge, lease, etc.) for a specified period or without the fulfillment of certain conditions (Section 76 LRA, 2012).
What is the purpose of a restriction?
To prevent improper dealing with land, inhibit fraud, protect the interests of other persons, and ensure the orderly administration of estates or trusts. For example, to prevent a trustee from selling land without the consent of the beneficiaries.
Who can request or impose a restriction?
Restrictions can be imposed by:
- The Proprietor of the land, lease, or charge.
- Any person with a sufficient interest in the land (e.g., a beneficiary).
- The Registrar, on their own motion, if it appears necessary to prevent fraud or improper dealing.
- Government bodies for regulatory, public, or statutory purposes.
What is the effect of a Restriction on land?
A restriction prevents the registration of any transaction that violates the terms of the restriction. For example, if a restriction states “No dealing without the Registrar’s consent,” no transfer or charge can be registered until that consent is obtained.
What is the process of removing a Restriction?
A restriction can be removed in three ways:
- By the Applicant: The person who applied for the restriction can apply to the Registrar to withdraw
- By the Registrar: The Registrar can cancel the restriction after being satisfied that the term of the restriction has expired, the event specified in the restriction has occurred, or the restriction is no longer necessary.
- By Court Order: An aggrieved person can apply to the Environment and Land Court (ELC) for an order directing the removal or variation of the restriction
What is an inhibition under the LRA?
An inhibition is a court order directing that no specific dealings regarding land, such as transfers, leases, or charges, may be registered for a defined period or until a further court order. Unlike cautions or restrictions, only courts can issue an inhibition. It is governed by Section 68 of the LRA, 2012.
What is the purpose of an inhibition?
Inhibitions are typically used to freeze any dealings on the land during legal disputes, preventing transactions that may prejudice pending litigation or ongoing investigations.
Who can apply for an inhibition?
Any party to a legal dispute involving land, through the courts.
What is the effect of an Inhibition on land?
An inhibition results in an absolute ban/ freezing on all dealings with the land until the inhibition is lifted. No transfer, charge, lease, or any other disposition can be registered during the subsistence of the inhibition.
How is an inhibition removed?
An inhibition is removed only by a subsequent court order, upon resolution of the dispute or conclusion of proceedings, or on application by a party if circumstances change.
Comparative Summary: Cautions, Restrictions, and Inhibitions
| Feature | Caution | Restriction | Inhibition |
| Governing Law | Sec. 71 LRA | Sec. 76 LRA | Sec. 68 LRA |
| Who Applies? | Any interested person | Registrar, Court, or interested party | Court, Registrar, or party |
| How to apply | Application to Registrar, Form LRA 67 | Application to Registrar, Form LRA 75 or by Registrar | File for a court order and register |
| Effect | Blocks dealings unless the cautioner is notified | Imposes conditions on dealings | Completely stops all dealings |
| Common Use | Purchaser’s interest, spousal interest, creditor’s claim | Trusts, minors, matrimonial property | Litigation, succession, fraud |
| Duration | Until removed | Until varied/removed | Time-bound or court-directed |
| Removal | By cautioner, registrar, or court | After an inquiry or by the court | By court order or expiry |
Conclusion
Safeguarding property rights in Kenya is essential to prevent fraud, investment losses, and unauthorized dealings. The Land Registration Act provides robust tools, Cautions, Restrictions, and Inhibitions, that serve different purposes depending on the nature of the interest and level of protection needed.
Whether you are:
- Purchasing property
- Protecting matrimonial property
- Managing succession disputes
- Preventing fraudulent transfers
- Holding land in trust
- Involved in a contested property transaction
…proper use of these instruments is critical.
How Njaga & Co. Advocates LLP Can Assist
At Njaga & Co. Advocates LLP, we provide comprehensive support in:
- Lodging and removing cautions, restrictions, and inhibitions
- Conducting due diligence and official land searches
- Drafting and registering property agreements
- Advising on co-ownership, trusts, and estate property
- Handling land fraud disputes and litigation
- Advising on matrimonial property protection
- End-to-end support in all property and real estate matters in Kenya
For tailored legal advice and strong protection of your property interests, contact us today.
Disclaimer: This article provides general information and does not substitute legal advice on specific circumstances of any individual or organization. While the information is accurate as of the date published, we cannot guarantee it remains accurate at the time you read it or that it will stay current. Before acting on any of this information, please seek professional legal advice tailored to your situation.
