Timothy Atamba Aboki v Elizabeth Mmbone Musa & another; Salim Kiptanui Rotich & 2 others (Proposed Defendant) [2018] KEELC 259 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether purchasers during the pendency of a suit can be joined as co-defendants after judgment
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.
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.
Validity of the sale agreements executed during the pendency of the suit and after the consent order of 6.4.2011
The agreements offend the doctrine of lis pendens and cannot defeat the plaintiff's claim.
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.
Whether the court retains jurisdiction to re-open proceedings after judgment
The application failed on the joinder point alone; the court did not need to resolve the functus officio contention.
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.
Legal principles established
#- 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
#- 1.The application is dismissed with costs to the Decree holder
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.