Hexmead Investment Ltd v Abdullahi Salo Tulu & another [2018] KEELC 3720 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicant could be joined as an interested party after judgment
The applicant cannot be enjoined; the suit was concluded, costs taxed and execution ongoing, so joinder rules are inapplicable
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.
Whether the doctrine of lis pendens bars the applicant's claim
Yes; the applicant bought plot 482 from the second defendant while the suit was pending and is bound by the outcome
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.
Whether the plaintiff was obliged to advertise the suit or enjoin the applicant
No; the applicant was not the registered owner and the plaintiff had no obligation to enjoin him
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.
Whether the judgment of 20th June 2012 should be set aside
The court declined to determine the issue as it was rendered superfluous by the finding on joinder
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.
Legal principles established
#- 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
#- 1.The applicant's application dated 20th July 2017 is dismissed
- 2.Costs of the application to the Plaintiff/Respondent
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.