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ELCDismissed· [2018] KEELC 259 (KLR)

Timothy Atamba Aboki v Elizabeth Mmbone Musa & another; Salim Kiptanui Rotich & 2 others (Proposed Defendant) [2018] KEELC 259 (KLR)

Environment and Land Court
27 November 2018
1,934 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The court refused to let land buyers join an ongoing case as co-defendants, ruling their purchases during the suit could not defeat the winner's claim.

What this practically means

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Executive summary

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The proposed 3rd, 4th and 5th defendants applied to be enjoined as co-defendants in an originating summons in which judgment had already been entered, seeking to file a defence and to have the judgment and consequential orders affecting them varied or set aside. They asserted that they had purchased the suit property from the 1st defendant, were in actual occupation since 2010, and faced eviction under the decree. The Decree holder (plaintiff) opposed, contending the applicants were not in possession when the suit was filed, that the sales breached a consent order of 6.4.2011 restraining sale pending suit, that the 1st defendant denied selling to Salim Kiptanui Rotich, and that the court was functus officio after judgment. The court held that the applicants' claim, being founded on adverse possession or purchase, could not be sustained by joinder as co-defendants: Order 37 requires joint title for adverse possession claims, the applicants had no joint title, were not title holders, and had not possessed the land for the statutory twelve years. Their remedy, if any, lay as plaintiffs against the defendants. The court further discounted the post-judgment letters of the surveyor and the Chief as unhelpful, and held that the sale agreements executed during the pendency of the suit and after the consent order offended the doctrine of lis pendens as articulated in Bellamy v Sabine and Mawji v US International University, rendering the purchasers bound by the judgment. The application was dismissed with costs to the Decree holder.

Key legal issues

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01

Whether purchasers during the pendency of a suit can be joined as co-defendants after judgment

Holding

No. Under Order 37 of the Civil Procedure Rules an adverse possession claim requires joint title and the applicants have none; they cannot be co-defendants with the defendants in a suit based on adverse possession.

Reasoning

The court held that an originating summons under Order 37 is the prescribed vehicle for adverse possession claims under section 38 of the Limitation of Actions Act. The applicants' claim is based on adverse possession or purchase, but they lack the joint title Order 37 requires, cannot be co-defendants in an adverse possession suit, have not possessed the land for over 12 years, and are not title holders. Their proper remedy is as plaintiffs against the defendants.

p. 2
02

Validity of the sale agreements executed during the pendency of the suit and after the consent order of 6.4.2011

Holding

The agreements offend the doctrine of lis pendens and cannot defeat the plaintiff's claim.

Reasoning

The sale agreements with the proposed defendants were all signed after the suit was filed and after the consent order of 6.4.2011 restraining sale. Applying Bellamy v Sabine and Mawji v US International University, the court held that alienations pendente lite cannot prevail and purchasers are bound by the judgment as if they had notice. Post-judgment letters from the surveyor and the chief were also discounted as unhelpful.

p. 3
03

Whether the court retains jurisdiction to re-open proceedings after judgment

Holding

The application failed on the joinder point alone; the court did not need to resolve the functus officio contention.

Reasoning

The Decree holder argued that joinder under Order 1 Rule 10(2) is only available during the pendency of the suit and that the court is functus officio after judgment. Counsel for the applicants invoked section 13 of the Environment and Land Court Act, Articles 48 and 50 of the Constitution and the overriding objective to urge that the court can re-open proceedings. The court disposed of the matter on the merits of the joinder claim without expressly ruling on functus officio.

p. 3

Legal principles established

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  • A claim based on adverse possession can only be lodged against a title holder, and persons claiming by adverse possession cannot be joined as co-defendants in a suit based on adverse possession under Order 37
  • The doctrine of lis pendens prohibits a party from giving pending litigation rights to the property in dispute so as to prejudice the other party; alienees pendente lite are bound by the judgment

Court orders

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  1. 1.The application is dismissed with costs to the Decree holder

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 10(2)
  • Civil Procedure Rules, 2010Order 37; Order 37 rule 7; Order 38
  • Environment & Land Court ActSection 13
  • Constitution of KenyaArticles 48 and 50
  • Limitation of Actions Act, Cap. 22Sections 7, 37 and 38
  • Government Lands Act (Cap. 280)
  • Registration of Titles Act (Cap. 281)Section 23 (as referenced in Mawji)
  • Land Titles Act (Cap. 282)
  • Registered Land Act (Cap. 300)

Cases cited (2)

  • Bellamy vs Sabine
    [1857] 1 De J 566
  • Mawji vs US International University & another
    [1976] KLR 185
Jurisdiction invoked
Section 13 of the Environment and Land Court Act; Articles 48 and 50 of the Constitution of Kenya invoked by the applicants

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, "Timothy Atamba Aboki v Elizabeth Mmbone Musa & another; Salim Kiptanui Rotich & 2 others (Proposed Defendant) [2018] KEELC 259 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/259/eng@2018-11-27

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