Mohamed Sheikh Abubakar v Zakarius M. Mbaya
The bottom line
#Kenya's Court of Appeal confirmed that a land title obtained while a lawsuit was still pending cannot be used to defeat the other party's claim.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the magistrate's court over land later brought under the Registration of Titles Act
The magistrate's court had jurisdiction because at the time the suit was filed the property was unsurveyed and unregistered, and the cause of action (trespass, vacant possession, injunction) fell within its mandate
Jurisdiction is determined at the institution of suit. When the appellant filed suit on 27 March 1998, the property had not been surveyed or registered under any regime, so the dispute sat within the magistrate's court. The cause of action was trespass with prayers for vacant possession and injunction, all within the trial court's mandate. The subsequent change of status could not retrospectively divest jurisdiction.
Effect of title obtained during the pendency of the suit - lis pendens
The appellant could not use the title obtained during the pendency of the suit to defeat the respondent's claim; the doctrine of lis pendens prohibited introducing anything new while litigation was pending
Applying the maxim 'ut lite pendente nihil innovetur', the court held that the doctrine prohibits a party from altering the status of the suit premises while the suit is pending. The appellant knew of the respondent's claim before obtaining his title and could not 'steal a match' by acquiring a certificate of title mid-litigation. The doctrine may be invoked by the court even if not pleaded, based on the evidence.
Whether the respondent was entitled to be restored to possession
The learned Judge rightly held the respondent entitled to restoration of possession of his portion, merely reinstating the status quo prior to the appellant's dismissed suit
Since the appellant's suit was dismissed, nothing prevented the respondent from taking possession of the portion he occupied as purchaser for value without notice. The High Court's order restoring the respondent simply reinstated the status quo existing before the appellant's suit. The court found no fault with that determination and affirmed the dismissal below.
Legal principles established
#- An objection on jurisdiction may be raised at any stage of proceedings, even on appeal, and jurisdiction cannot be conferred by consent or acquiescence
- A party to a pending suit cannot alter the status of the suit property or obtain a new title over it during litigation so as to defeat the adverse claim of the other party
- A trial court's jurisdiction is determined by the status of the property and the cause of action at the time the suit was filed, not by later changes during the pendency of the suit
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- E.L.C Civil Appeal No. 6 of 2016
- Jurisdiction invoked
- First appellate jurisdiction of the Court of Appeal over the High Court/Environment and Land Court (Constitution of Kenya, Article 164)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mohamed Sheikh Abubakar v Zakarius M. Mbaya", Case Analysis (2019). Civil Appeal No. 62 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/961/eng@2019-02-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.