Legal

Caution vs Restriction on Land in Kenya

A plain-language guide to cautions and restrictions on Kenyan land records, what each can do, and what a buyer should do if one appears on a search.

A caution and a restriction can both affect dealings with land, but they are not the same thing.

The distinction matters when one appears on an official search.

What is a caution?

The Land Registration Act allows a person claiming a relevant interest in land, a lease or a charge to lodge a caution.

A caution can stop specified registrations from being made without first addressing the caution.

Kenya Law sets out cautions in sections 71 to 75 of the Land Registration Act.

What is a restriction?

A restriction is entered by the Registrar to prohibit or limit dealings with land, a lease or a charge.

The Act allows restrictions for reasons including preventing fraud or improper dealing, or for another sufficient cause.

A restriction can last for a period, until an event occurs, or until a further order is made.

Why the difference matters to a buyer

If either appears on the search, do not assume the transfer can simply proceed around it.

Ask:

Can a caution be removed?

The Land Registration Act provides procedures for withdrawal and removal.

A wrongful caution lodged without reasonable cause can also expose the cautioner to a claim for damages.

That does not mean a buyer should personally try to remove one. Your advocate should establish the legal basis and correct process.

Can a restriction be removed?

A restriction may be removed or varied by the Registrar in the circumstances set out by law. A court can also become involved.

An instrument inconsistent with a registered restriction generally cannot be registered while that restriction remains in place.

What should you do during due diligence?

If a search shows either entry:

  1. obtain the details
  2. understand the underlying dispute or condition
  3. ask your advocate whether completion is possible
  4. do not release the purchase balance on the assumption that removal is automatic

See our broader guide to encumbrances on land in Kenya and the property due diligence checklist.

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