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ELCAllowedNot stated in extract (Malindi HCCC; suit filed 20th May 2011)· [2013] KEELC 137 (KLR)

Carol Silcock v Kassim Sharrif Mohamed [2013] KEELC 137 (KLR)

Environment and Land Court
22 August 2013
OAO. A. Angote
3,374 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court voided a land sale made while a lawsuit over that land was still ongoing, even though the new buyer knew nothing about the dispute.

What this practically means

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Executive summary

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The Plaintiff, who had obtained judgment on 6th July 2012 (Meoli J) for specific performance of a 2008 sale agreement over Plot No. 139 Watamu, brought two applications after discovering that the Defendant had transferred the suit property to Maddy Watamu Limited on 20th December 2011, during the pendency of the suit and without disclosing it when testifying. The Plaintiff sought a declaration that the transfer was null and void, an order cancelling the registration, and joinder of Maddy Watamu Limited for those purposes. The Defendant and the company opposed, arguing inter alia that section 52 of the Indian Transfer of Property Act, 1882 had been repealed, that section 23 of the Registration of Titles Act protected an innocent purchaser for value without notice, that the court was functus officio after judgment, and that joinder after judgment was procedurally impermissible. Angote J held that although the ITPA and RTA were repealed by Act No. 3 of 2012, they remained the governing law for property registered under them; that the doctrine of lis pendens under section 52 ITPA, being substantive law founded on public policy and equity, overrides section 23 RTA, so a purchaser pendente lite is bound by the decree whether or not he had notice and purchases at his own risk; and that requiring a fresh suit would mock justice and offend the overriding objective. The court was not functus officio for this purpose. Both applications were allowed: Maddy Watamu Limited was joined, the transfer of 20th December 2011 was declared null and void, the Registrar of Titles, Mombasa was ordered to comply with the judgment and decree of 6th July 2012, and the Defendant was ordered to pay the costs of both applications.

Key legal issues

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01

Applicability of repealed ITPA and RTA

Holding

The repealed ITPA and RTA still govern the suit property because that was the law under which the property was registered

Reasoning

The RTA is procedural/registration law while the ITPA was introduced as substantive law by the East African Order in Council 1897. Though both were repealed by Act No. 3 of 2012, they apply to the suit property as the governing law at registration.

p. 3
02

Lis pendens versus indefeasibility under section 23 RTA

Holding

Section 52 ITPA, a substantive doctrine of common law founded on public policy and equity, overrides section 23 of the RTA; no fresh suit or proof of fraud is required

Reasoning

Relying on Fredrick Joses Kinya, the court held lis pendens is substantive law overriding the RTA's registration provisions. Requiring the plaintiff to litigate afresh and prove fraud would defeat the doctrine's purpose and the overriding objective.

p. 5
03

Functus officio and joinder after judgment

Holding

The court was not barred from enjoining the transferee and annulling the transfer; the cancellation renders the transfer subservient rather than annulling the conveyance

Reasoning

The functus officio objection was a technicality the oxygen principle disfavours. Since the judgment binds Maddy Watamu Limited under lis pendens, joinder after judgment was justified in the unique circumstances and no fresh suit was needed.

p. 6

Legal principles established

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  • A transfer of suit property made pendente lite is subservient to the rights of the parties and binds the alienee, who is presumed to know of the litigation, whether or not he had actual notice
  • In the absence of an injunctive order a party may dispose of property, but the final judgment binds the third party and the court disregards the transfer

Court orders

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  1. 1.Maddy Watamu Limited enjoined in the suit for purposes of the application dated 24th August 2012
  2. 2.The transfer between the Defendant and Maddy Watamu Limited dated 20th December 2011 declared null and void
  3. 3.The Registrar of Titles, Mombasa, ordered to comply with the Judgment and Decree of the court dated 6th July 2012
  4. 4.Defendant to pay the costs of both applications

Authorities

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Legislation

  • Indian Transfer of Property Act, 1882section 52
  • Civil Procedure Actsections 1A, 1B and 34
  • Registration of Titles Act, Cap 281section 23
  • Environment and Land Court Act, 2011section 3
  • East African Order in Council, 1897Article 11(b)

Cases cited (6)

  • Fredrick Joses Kinyua & Another vs E. N. Bated
    Nairobi Civil Case No. 4819 of 1989
  • Abdalla Omar Nabhan vs The Executor of the Estate of Saad Bin Abdalla Bin Abuod & Another
    Malindi HCCC No. 63 of 2013
  • Manwji vs U.S. International University and Another
    (1976-80) KLR 229
  • Bellamy vs Sabine
    (1857) 1 De J 566
  • Mradula Suresh Kantaria vs Surech Nanillal Kaptaria
    Civil Appeal Number 277 of 2005
  • Caltex Oil Limited vs Evanso Wanjihia
    Civil Application No. Nairobi 190 of 2009
Jurisdiction invoked
Environment and Land Court Act, 2011, section 3; sections 1A and 1B of the Civil Procedure Act; section 52 of the Indian Transfer of Property Act, 1882

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Carol Silcock v Kassim Sharrif Mohamed [2013] KEELC 137 (KLR)", Case Analysis (2013). Not stated in extract (Malindi HCCC; suit filed 20th May 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/137/eng@2013-08-22

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