Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal 74 of 2018· [2022] KECA 904 (KLR)

Elizabeth Sarange Abange v Milka Musimbi Mavia & 8 others

Court of Appeal
8 July 2022
4,794 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled that buying land while a court case over it is ongoing binds you to that case's outcome, and buyers must investigate anyone living on the land.

What this practically means

#

Executive summary

#
The Court of Appeal at Kisumu (Tuiyott, Kiage and Mumbi Ngugi, JJA) unanimously dismissed this appeal against the Environment & Land Court at Eldoret (Ombwayo, J), which had nullified the appellant's registration as proprietor of Uasin Gishu/Kimumu/1567. The appellant had bought the land from the deceased, John Mavia Wetira, while a Land Disputes Tribunal award in favour of the respondents (the deceased's widow and family, who were in occupation) was pending and later adopted. The court, per Tuiyott JA, held that lis pendens does not itself void a transaction but binds the purchaser to the litigation's outcome; that the Tribunal lacked jurisdiction under section 3(1) of the Land Disputes Act, 1990 to determine ownership of registered land, so its award was a nullity - but a party seeking to escape lis pendens on jurisdictional grounds must specifically plead it, which the trial court failed to address, an error the appellate court cured itself. The appeal nonetheless failed because the appellant was not a bona fide purchaser without notice: clause 9 of the sale agreement and the respondents' visible occupation imposed a duty to inquire, their rights under section 30(g) of the repealed Registered Land Act being overriding; and the Land Control Board consent was tainted by forgery allegations the court found well founded, pre-dating the agreement and lacking required particulars. The appeal was dismissed with costs to the respondents.

Key legal issues

#
01

Effect of the doctrine of lis pendens on a transfer during pendency of proceedings

Holding

Lis pendens does not void the transfer; it binds the purchaser to the result of the litigation, so if the litigation upsets the vendor's interest the transfer is of no effect.

Reasoning

Adopting Mawji v United States International University, the court held the doctrine's objective is to prevent litigation being defeated by alienations pendente lite. Section 52-type provisions merely prohibit transfer; the purchaser is bound by the decree as if he had notice. The outcome of the litigation renders the transfer a nullity only derivatively.

02

Jurisdiction of the Land Disputes Tribunal over title to registered land

Holding

The Tribunal, established under section 4 of the Land Disputes Act, 1990, had jurisdiction only over boundary disputes, claims to occupy or work land, and trespass; it could not determine ownership of registered land.

Reasoning

Section 3(1) of the Act confines tribunals to civil disputes over division/determination of boundaries, claims to occupy or work land, and trespass. A dispute over ownership of title to land fell outside this. Lack of jurisdiction is not cured by absence of appeal; the Tribunal's award was a nullity and could not found the lis pendens plea.

p. 7
03

Pleading requirement for a jurisdiction-based escape from lis pendens

Holding

A party seeking to avoid lis pendens on the ground that the pending litigation was before an incompetent forum must specifically plead that lack of jurisdiction and invite the court to make a declaration.

Reasoning

Although the appellant's reply to the amended defence denied the Tribunal's jurisdiction, the trial court never interrogated the Tribunal's competence. The appellate court held the trial judge fell into error by not addressing it, and determined the issue itself, reaching a different outcome on the lis pendens point while still dismissing the appeal on the bona fide purchaser and overriding interest grounds.

p. 6
04

Bona fide purchaser status and overriding interests

Holding

The appellant was not a bona fide purchaser without notice: clause 9 of the sale agreement and the respondents' visible occupation imposed an implicit duty to inquire, which she failed to discharge.

Reasoning

Clause 9 of the agreement ('The seller has already talked to his family members...') implied the family had an interest and placed an onus on the appellant to inquire of the respondents in occupation. Under section 30(g) of the repealed Registered Land Act, rights of persons in actual occupation are overriding interests that bind title save where inquiry is made and rights are not disclosed.

p. 7
05

Fraud and irregularities in the Land Control Board consent

Holding

The respondents' allegation of a forged consent was well founded; the consent pre-dated the agreement, lacked the Board's stamp, and omitted the application date, nature of transaction and purchase price.

Reasoning

The appellant gave shifting testimony - at one point claiming she applied for the consent, at another that the vendor obtained it. The consent was granted on 2nd August 2005, over a month before the 13th September 2005 agreement, though the agreement contemplated consent had not been obtained. These stark irregularities ought to have been noticed by the appellant, defeating her bona fide purchaser claim.

p. 8

Legal principles established

#
  • The effect of lis pendens is not to void or annul a transaction effected during the pendency of a suit, but to bind the purchaser to the outcome of that litigation.
  • Lis pendens applies only where the pending litigation is before a court of competent jurisdiction; but a party relying on lack of jurisdiction to escape the doctrine must specifically plead and seek a declaration to that effect.
  • The Land Disputes Tribunals Act, 1990 did not confer jurisdiction on tribunals to determine disputes over title to land; such a determination is a nullity even if unappealed.
  • A purchaser who fails to inquire of persons in actual occupation takes title subject to their overriding interest under section 30(g) of the repealed Registered Land Act.
  • A purchaser who participates in a transaction fraught with irregularities that ought to have been noticed is not a bona fide purchaser without notice.

Court orders

#
  1. 1.Appeal dismissed
  2. 2.Appellant to pay costs of the appeal and the suit to the respondents

Authorities

#

Legislation

  • Registered Land Act (repealed), Cap 300section 30(g)
  • Registered Land Act (repealed), Cap 300section 143
  • Registered Land Act (repealed), Cap 300sections 27 and 28
  • Land Registration Actsections 23, 24, 25 and 26
  • Land Disputes Tribunals Act, 1990 (repealed)section 3(1)
  • Land Disputes Tribunals Act, 1990 (repealed)section 4
  • Transfer of Property Act (India)section 52

Cases cited (9)

  • Juletabi African Adventure Limited & Another vs Christopher Michael Lockley
    [2012] eKLR

    Onus on a party relying on a trust to prove it through evidence; it cannot be implied without intent to create it

  • Alice Wairimu Macharia vs Kirigo Philip Macharia
    [2019] eKLR

    Same proposition on burden of proving an alleged trust

  • Elekia Mabosio Marenga
    [2018] eKLR

    Land Disputes Tribunal lacked jurisdiction over sale, purchase or registration of land and purchasers' rights

  • Wamwea vs Catholic Diocese of Muranga Registered Trustees
    [2013] eKLR

    Same proposition on the Tribunal's lack of jurisdiction

  • Hardev Singh vs Gurmail Singh
    [2007] 2 SCC 404

    Section 52 merely prohibits transfer; lis pendens does not render the transaction void

  • Dev Raj Dogra & Others vs Gyan Chand Jain & Others
    1981 SCR (3) 174

    Lis pendens applies only where the matter is pending before a court of competent jurisdiction

  • Mawji vs United States International University & Another
    [1976] KLR 185

    Objective of lis pendens in Kenya; court's power to prevent dealings pending determination

  • Bellamy v Sabine
    (1857) 1 De G & J 566

    Foundation of lis pendens - suits could not terminate successfully if alienations pendente lite prevailed

  • Losinska v Civil and Public Services Association
    [1976] I CR 743

    An interim prohibitory order is no guarantee the plaintiff would succeed

On appeal from
Environment & Land Court at Eldoret
Environment & Land Court Case No. 228 of 2012 (formerly Eld HCC No. 7 of 2006)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal under Article 164 of the Constitution (not expressly stated in the judgment)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Elizabeth Sarange Abange v Milka Musimbi Mavia & 8 others", Case Analysis (2022). Civil Appeal 74 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/904/eng@2022-07-08

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.