Abdalla Omar Nabhan v Executor of the Estate of Saad Bin Abdalla Bin Aboud & 2 others [2013] KEELC 104 (KLR)
The bottom line
#Buying land while a lawsuit over it is pending in Kenya is risky — the court's final decision binds you even if no injunction is registered on the title.
What this practically means
#Executive summary
#Key legal issues
#Joinder of subsequent purchasers and application of lis pendens
All persons who have dealt with portions 4155, 4156 and 4157 must be joined because the doctrine of lis pendens means any judgment of the court will bind them regardless of their status as purchasers for value
The court traced lis pendens from section 52 of the Indian Transfer of Property Act 1882 through Bellamy v Sabine, Manwji v US International University and Indian authorities, holding that the doctrine rests on public policy and equity: alienations pendente lite cannot defeat the rights of other parties. Purchasers without notice are still bound. Joinder is also justified under Order 1 Rule 10(2) of the Civil Procedure Rules to enable complete adjudication.
Injunction over portion 4157 notwithstanding non-registration of the original order
The injunction over portion 4157 granted by Wambilyangah J on 17th October 1995 is reiterated against the Interested Party; the transfer to Tropicgel before the Ruling was set aside was contemptuous and no defence of non-registration or want of notice avails
The court found that the original Defendant transferred portion 4157 to Tropicgel East Company Limited on 20th January 2006, before the 1995 Ruling was set aside, while represented by counsel. Since a litigant represented by an advocate is presumed aware of court orders, the transfer was wrongful. The court reiterated the earlier finding that the Plaintiff had met the injunction conditions and restrained the Interested Party from dealing with the parcel pending hearing.
Effect of absence of injunctive order on dealings with suit property
In the absence of an injunctive order a party may deal with the property, but the final judgment binds the third party as though the transfer never took place
The court distinguished between parcels covered by an injunction and those not. Preservation under lis pendens does not freeze all dealings; a pending-suit property may be sold, but the purchaser takes subject to the litigation and cannot claim protection as an innocent purchaser for value so as to escape joinder or the court's judgment.
Legal principles established
#- A party who purchases property and invests in it while a suit is pending does so at his own risk notwithstanding the absence of a registered injunctive order
- The doctrine of lis pendens renders judgments and orders of the court in respect of suit property binding on subsequent purchasers, who should therefore be joined to the proceedings
- A litigant represented by counsel is presumed aware of court orders and cannot feign ignorance for want of personal service or registration of the order against the title
Court orders
#- 1.Zulfiker Haiderali Khimji, Ingrid Feltrin, Tropicgel East Company Limited, Adolf Spinola, Giuseppe Spinola and Ali Rima Point Limited joined as Defendants and the Plaint to be amended accordingly within 14 days
- 2.The Defendants and Ali Rima Point Limited restrained from developing, constructing, alienating, transferring, charging or dealing in any manner with portion number 4157 (original number 2091/6) Malindi pending hearing and determination of the suit
- 3.The injunctive order to remain in force for six months within which the suit should be heard and determined
- 4.Interested Party's Application dated 13th May 2013 dismissed with costs
- 5.Plaintiff's Applications dated 25th February 2013 and 8th April 2013 allowed with costs
- 6.Suit to be heard and determined within six months from the date of the Ruling
- Jurisdiction invoked
- Original civil jurisdiction of the High Court over land disputes; applications brought under Order 1 Rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mbugua v Mbugua & 3 others (Environment and Land Case 169 of 2007) [2026] KEELC 1850 (KLR)[2026] KEELC 1850 (KLR)24 Mar 2026followed
- Musungu v Shaaban & 4 others (Environment and Land Case 9 of 2021) [2026] KEELC 1894 (KLR)[2026] KEELC 1894 (KLR)18 Mar 2026
- Malik & 8 others v Cabinet Secretary Ministry of Interior & National Administration & 6 others (Environment and Land Petition E015 of 2024) [2025] KEELC 7513 (KLR)[2025] KEELC 7513 (KLR)30 Oct 2025applied
Cite this brief
#Cite this brief
Caselaw, "Abdalla Omar Nabhan v Executor of the Estate of Saad Bin Abdalla Bin Aboud & 2 others [2013] KEELC 104 (KLR)", Case Analysis (2013). Not stated in the judgment (Mombasa District Registry, filed 25th August 1994). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/104/eng@2013-07-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.