Hellena Wakina Mauricio v Reuben Kamwocere & 3 others [2018] KEELC 4606 (KLR)
The bottom line
#A Kenyan court nullified land transfers made while a lawsuit was ongoing, confirming that selling disputed property to defeat a court ruling won't protect the new owners.
What this practically means
#Executive summary
#Key legal issues
#Mode of bringing the application - notice of motion within an existing suit versus a fresh plaint
The preliminary objection failed; the wrong procedure did not render the proceedings fatally defective.
The court applied Article 159(2) of the Constitution and section 19(1) of the Environment and Land Court Act, 2012, which oblige it to dispense justice without undue regard to procedural technicalities. Relying on Boyes v Gathure, the court held that use of a wrong procedure invalidates proceedings only if it goes to jurisdiction and causes prejudice. Endorsing Carol Silcock v Kassim Sharrif Mohamed, it found no need for a fresh suit.
Nullification of transfers made pendente lite
The transfers were nullified under the doctrine of lis pendens as alienations intended to defeat the course of justice.
The Plaintiff's factual averments were unchallenged: he lost in the Court of Appeal and alienated the suit properties during the pendency of litigation. Adopting Mawji v US International University and Bellamy v Sabine, the court held that alienations pending suit cannot defeat a successful litigant, since alienees derive title subject to the pending litigation.
Section 26 of the Land Registration Act and indefeasibility of title
The court declined to rule on the section 26 aspect because the Plaintiff made no submissions on it.
Although the Defendant argued that the post-judgment alienation fell within section 26 of the Land Registration Act, the Plaintiff's preliminary objection invited dismissal under Order 3 Rule 1 and section 26 but the Plaintiff made no submissions on the application or contravention of section 26; the court therefore dealt no further with that aspect.
Legal principles established
#- Legal proceedings cannot be invalidated merely because the wrong procedure was employed unless it is fundamental and goes to jurisdiction
- A successful litigant need not file a fresh suit where a mischievous defendant alienates the suit property in the course of litigation; lis pendens binds alienees pending the suit
Court orders
#- 1.The Plaintiff's notice of preliminary objection dated 10th July 2017 dismissed with costs to the Defendant
- 2.The Defendant's notice of motion dated 30th May 2017 allowed in terms of prayer (d) thereof
- 3.The Plaintiff to bear the costs of the application dated 30th May 2017
- Jurisdiction invoked
- Environment and Land Court Act, 2012 (section 19(1)) over land parcel Nos Gaturi/Nembure/13578, 13579 and 13580
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellena Wakina Mauricio v Reuben Kamwocere & 3 others [2018] KEELC 4606 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4606/eng@2018-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.