Elizabeth Sarange Abange v Milka Musimbi Mavia & 8 others
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
#Key legal issues
#Effect of the doctrine of lis pendens on a transfer during pendency of proceedings
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.
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.
Jurisdiction of the Land Disputes Tribunal over title to registered land
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.
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.
Pleading requirement for a jurisdiction-based escape from lis pendens
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.
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.
Bona fide purchaser status and overriding interests
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.
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.
Fraud and irregularities in the Land Control Board consent
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.
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.
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.Appeal dismissed
- 2.Appellant to pay costs of the appeal and the suit to the respondents
- 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.