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ELCAllowedMisc. Application (Judicial Review) – Notice of Motion dated 23/6/2017· [2018] KEELC 2688 (KLR)

Peter Kinuthia Wagacha v Land Registrar, Thika & 2 others [2018] KEELC 2688 (KLR)

Environment and Land Court
2 July 2018
3,498 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 cancelled a land title bought while the ownership dispute was still in court, because the buyer knew about the case.

What this practically means

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Executive summary

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The Applicant, a beneficiary of the estate of Simon Wagacha Kinuthia under a confirmed grant in High Court Succession Cause No. 1552 of 2002, moved the court by Notice of Motion dated 23/6/2017 seeking orders compelling the Land Registrar Thika to cancel the title issued to Henry Wallace Maina and Esther Wambui Maina over L.R No. LOC 16/KIGORO/68, reinstate his father's name, and register the beneficiaries. The application followed a High Court appeal judgment (HCCA No. 642 of 2003, delivered by Mbogholi J) setting aside the Thika magistrates' court judgment which had vested the land in Nganga Muchara. While that appeal was pending, the administrators of James Kariuki Nganga's estate transferred the land to the 3rd Respondent and his wife, who claimed to be bonafide purchasers for value without notice. The court framed three issues. It held that the High Court appeal judgment remained valid and unchallenged; that the transfer during the pendency of the appeal offended the doctrine of lis pendens; and that the 3rd Respondent, having admitted knowledge of pending litigation and a stay order served on the Land Control Board, could not qualify as a bonafide purchaser for value without notice, applying Arthi Highway Developers Ltd v West End Butchery Ltd. The 1st and 2nd Respondents, though served, filed no response and were taken to have admitted the claim. The Notice of Motion was allowed as prayed, with costs awarded to the Applicant against all three Respondents.

Key legal issues

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01

Whether the 3rd Respondent is a bonafide purchaser for value without notice

Holding

No. He admitted knowledge of pending litigation (CMCC No 696A of 2009 and HCCA 642 of 2003), the administrators' knowledge of the cases, and service of a court order on the Land Control Board at which he participated.

Reasoning

The court adopted the Court of Appeal's definition in Arthi Highway Developers Ltd v West End Butchery Ltd and held the onus of proving the defence lies on the party relying on it. The 3rd Respondent's own affidavit admitted awareness of the pending suit, the appeal and a stay order served on the Land Control Board. These admissions disqualified him from the protection of the bonafide purchaser doctrine.

p. 4
02

Whether the Applicant is entitled to the orders sought

Holding

Yes. The High Court appeal judgment in HCCA 642 of 2003 setting aside the lower court judgment remains valid and unchallenged; the orders sought are consequential to it, and the 1st and 2nd Respondents, being served and unresponsive, were taken to have admitted the case.

Reasoning

The court found that the judgment in HCCA 642 of 2003 determining ownership in favour of Simon Wagacha Kinuthia's estate had not been vacated, appealed, set aside or varied. The confirmation of grant in Succession Cause No. 1552 of 2002 vested the land in the Applicant and other beneficiaries. The transfer during the pendency of the appeal offended the doctrine of lis pendens, and the Registrar's failure to effect registration justified the court's intervention.

p. 3
03

Lis pendens and the validity of the transfer to the 3rd Respondent

Holding

The suit land was sold while the High Court appeal was pending and without the court's permission, raising the doctrine of lis pendens which renders the transaction subject to questioning.

Reasoning

The court traced the common law doctrine of lis pendens, formerly enacted in section 52 of the now-repealed Indian Transfer of Property Act, and held its objective is to maintain the status quo over suit property and prevent defeating the rights of a decree holder. The sale to the 3rd Respondent occurred during the pendency of HCCA 642 of 2003 without court authority, so the transaction's bona fides were open to question.

p. 3

Legal principles established

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  • During the pendency of a suit in which a right to immovable property is in question, the property cannot be transferred so as to affect the rights of others except with the authority of the Court (doctrine of lis pendens).
  • A bonafide purchaser for value without notice must have made all necessary and relevant enquiries and could not reasonably have accessed information adversely affecting the land; the onus of proving the defence lies on the person relying on it.

Court orders

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  1. 1.The Notice of Motion dated the 23.6.2017 is allowed as prayed.
  2. 2.The 1st, 2nd and 3rd Respondent shall pay the costs of the application to the applicant.
Jurisdiction invoked
Article 50 of the Constitution of Kenya 2010; Order 53 rules 3 & 4 of the Civil Procedure Rules; sections 3 & 3A of the Civil Procedure Act Cap 21; sections 6, 7, 8, 9, 10 & 14 of the Land Registration Act 2012

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, "Peter Kinuthia Wagacha v Land Registrar, Thika & 2 others [2018] KEELC 2688 (KLR)", Case Analysis (2018). Misc. Application (Judicial Review) – Notice of Motion dated 23/6/2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2688/eng@2018-07-02

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