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ELCDismissedELC Suit (Nairobi) - suit filed 24th December 2007 (number not stated in judgment)· [2018] KEELC 3720 (KLR)

Hexmead Investment Ltd v Abdullahi Salo Tulu & another [2018] KEELC 3720 (KLR)

Environment and Land Court
4 April 2018
1,711 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 in Kenya while a court case over it is ongoing, the court's final decision binds you — even if you never knew about the case.

What this practically means

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Executive summary

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The plaintiff, registered owner of LR No.209/10908, sued two defendants for trespass in a suit filed on 24th December 2007. Judgment was entered for the plaintiff on 20th June 2012: the defendants were found to be trespassers, ordered to remove their structures within three months, awarded damages of Kshs.2,500 each, and restrained from interfering with the property. Execution stalled when the auctioneer met resistance on the ground. Sylvester Mutua Kamwilu then applied on 20th July 2017 to be enjoined as an interested party and to have the judgment set aside so he could file a defence, contending he purchased plot 482 from Bernard Migosi Kamanda (the second defendant) on 29th May 2009 and only learnt of the suit in March 2017. The plaintiff opposed, arguing lis pendens, that joinder lies only in pending proceedings, and that the court was functus officio. The court framed two issues: joinder and setting aside judgment. On joinder, it held that the applicant acquired the plot pendente lite and is bound by the doctrine of lis pendens per Bellenny v Sabine; further, Order 1 Rules 14 and 10(2) contemplate joinder only in pending proceedings, and since judgment had been delivered, costs taxed and execution ongoing, nothing remained to warrant joinder. The court declined to consider setting aside the judgment as superfluous, dismissed the application with costs to the plaintiff/respondent.

Key legal issues

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01

Whether the applicant could be joined as an interested party after judgment

Holding

The applicant cannot be enjoined; the suit was concluded, costs taxed and execution ongoing, so joinder rules are inapplicable

Reasoning

Order 1 Rules 14 and 10(2) of the Civil Procedure Rules contemplate joinder only in pending proceedings. Judgment was delivered on 20th June 2012, costs taxed, and execution ongoing. There was nothing remaining in the suit requiring the applicant's addition, so the application for joinder fails.

p. 2
02

Whether the doctrine of lis pendens bars the applicant's claim

Holding

Yes; the applicant bought plot 482 from the second defendant while the suit was pending and is bound by the outcome

Reasoning

The suit was filed in December 2007; the applicant purchased plot 482 from Kamanda, the second defendant, in May 2009 while the litigation was pending. Under lis pendens (Bellenny v Sabine), the decision binds those deriving title from litigating parties, whether or not the alienee had notice, ensuring finality of litigation.

p. 2
03

Whether the plaintiff was obliged to advertise the suit or enjoin the applicant

Holding

No; the applicant was not the registered owner and the plaintiff had no obligation to enjoin him

Reasoning

The applicant could not have been sued in 2007 as he had not yet acquired the plot. Even after acquiring plot 482 from Kamanda during the pendency of the suit, the plaintiff had no obligation to join him, as he was bound by lis pendens as a person deriving title from a litigating party.

p. 2
04

Whether the judgment of 20th June 2012 should be set aside

Holding

The court declined to determine the issue as it was rendered superfluous by the finding on joinder

Reasoning

Having found that the applicant cannot be enjoined as an interested party, the court held it would be superfluous to consider setting aside the judgment. The application was therefore dismissed in its entirety with costs to the plaintiff/respondent.

p. 2

Legal principles established

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  • A purchaser of property during the pendency of litigation over it is bound by the judgment in that litigation under the doctrine of lis pendens, whether or not he had notice of the proceedings
  • An application for joinder of a party must be made in pending proceedings; where a suit has been finally disposed of with nothing remaining, joinder is unavailable

Court orders

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  1. 1.The applicant's application dated 20th July 2017 is dismissed
  2. 2.Costs of the application to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 14
  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (5)

  • William Ole Nabaala Vs Attorney General & 9 others
    (2015) eKLR
  • Carol Silcok Vs Kassim Sharrif Mohammed
    Malindi ELC No 55 of 2011
  • Bellenny Vs Sabine
    (1857) I Dej 566 at 584
  • JMK Vs M W M and another
    (2015) eKLR
  • Tanga Gas Distributors Ltd vs Said and others
    (2014) EA 448
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit)

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, "Hexmead Investment Ltd v Abdullahi Salo Tulu & another [2018] KEELC 3720 (KLR)", Case Analysis (2018). ELC Suit (Nairobi) - suit filed 24th December 2007 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3720/eng@2018-04-04

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