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ELCDismissed(Intended Interested Party's Application dated 29th April 2015 in the suit determined on 17th October 2014)· [2016] KEELC 553 (KLR)

Ali Mwaduna v Masha Mkadha & another [2016] KEELC 553 (KLR)

Environment and Land Court
14 September 2016
OAO. A. Angote
1,086 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If you buy land while a court case over it is ongoing, your ownership claim may fail and your only remedy is suing the seller for damages.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (O. A. Angote J) determines an application dated 29th April 2015 by Dr. Charles Mwangome Mbango, the Intended Interested Party, seeking leave to be enjoined in a suit between the Plaintiff and the Defendant as an Interested Party and/or Third Party, a stay of execution of the judgment delivered on 17th October 2014, and the setting aside of that judgment and any consequential orders. The Applicant deponed that he purchased from the Defendant a 6-acre portion of plot Kilifi/Ngerenyi/331 for Kshs.1,500,000 by agreement dated 19th December 2013, and that a Title Deed for the subdivision, Kilifi/Ngerenyi/1268, was issued to him on 22nd December 2014. The Respondent opposed, contending that the Applicant held no valid title, that he should have sought enjoinment as a Defendant rather than an Interested Party, and that the application was brought in bad faith as the decree had already been executed and the Applicant had separately filed Kilifi PMCC No. 93 of 2015. The court found that the sale occurred during the pendency of litigation dating back to 1989, that plot 1268 did not exist at the time of the sale agreement, and that the Land Control Board consent and Title Deed issued only after the judgment of 17th October 2014, which had adopted a vesting order of 29th June 1990 confirmed by the High Court in Misc. Civil Application No. 174 of 1994. Holding that the Applicant was not a necessary party and that his cause of action lay only against the Defendant for damages, the court dismissed the application with costs on 14th September 2016.

Key legal issues

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01

Whether the purchaser of suit property after commencement of the suit is a necessary party who may be enjoined under Order 1 Rule 10(2)

Holding

He is not a necessary party where judgment has already been delivered and his title issued after the judgment.

Reasoning

The court found that the sale agreement of 19th December 2013 was concluded while litigation between the Plaintiff and Defendant was ongoing since 1989, and the Land Control Board consent and Title Deed for plot 1268 issued in December 2014, after the judgment of 17th October 2014. The Applicant's interest therefore depended entirely on the Defendant succeeding in setting aside the judgment, and his proper remedy was against the Defendant for damages.

p. 3
02

Whether the judgment of 17th October 2014 should be set aside on the Applicant's application

Holding

No. The judgment adopted a vesting order issued by the Magistrate on 29th June 1990 and confirmed by the High Court, and the Applicant cannot succeed as against the Plaintiff notwithstanding his Title Deed.

Reasoning

The court reasoned that it had adopted the vesting order confirmed by the High Court in Mombasa Misc. Civil Application No. 174 of 1994, and the Defendant had never set aside those orders. The Applicant's cause of action is pegged on the success of the Defendant in setting aside the order of the court; absent that, only damages against the Defendant are available to him.

p. 3

Legal principles established

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  • A person who purchases suit property during the pendency of litigation, and whose title issues after judgment, is not a necessary party to those proceedings and cannot defeat the judgment; his remedy lies against his vendor in damages.

Court orders

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  1. 1.The Application dated 29th April, 2015 is dismissed with costs
Jurisdiction invoked
Inherent jurisdiction of the court under the Civil Procedure Act and Order 1 Rule 10(2) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ali Mwaduna v Masha Mkadha & another [2016] KEELC 553 (KLR)", Case Analysis (2016). (Intended Interested Party's Application dated 29th April 2015 in the suit determined on 17th October 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/553/eng@2016-09-14

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