Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially Allowed· [2018] KEELC 4606 (KLR)

Hellena Wakina Mauricio v Reuben Kamwocere & 3 others [2018] KEELC 4606 (KLR)

Environment and Land Court
1 February 2018
1,783 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

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

#
The Defendant, who had apparently succeeded against the Plaintiff all the way to the Court of Appeal, moved the court by notice of motion dated 30th May 2017 seeking inhibition orders over land parcels Gaturi/Nembure/13578, 13579 and 13580, joinder of Henry Njeru Kinyua, Juliana Weruma Ireri and Irene Muthoni Murithi as interested parties, and nullification of the transfers and cancellation of the new titles. She alleged the Plaintiff had subdivided and transferred the suit properties during the pendency of litigation, after losing in the Court of Appeal. The Plaintiff filed a preliminary objection arguing the application was fatally defective since such relief required a fresh suit by plaint under Order 3 Rule 1 of the Civil Procedure Rules, and invoked section 26 of the Land Registration Act. Joinder (prayer (c)) had earlier been granted and an interim inhibition issued. The court dismissed the preliminary objection, holding that under Article 159(2) of the Constitution and section 19(1) of the Environment and Land Court Act, 2012, and on the authority of Boyes v Gathure, use of a wrong procedure does not invalidate proceedings unless jurisdiction is affected, and endorsing Carol Silcock v Kassim Sharrif Mohamed that a successful litigant need not file a fresh suit where the defendant alienates the property during litigation. On the merits, the unchallenged facts established alienation pendente lite to defeat justice; applying the doctrine of lis pendens as explained in Mawji v US International University and Bellamy v Sabine, the court allowed prayer (d) and nullified the transfers, with costs to the Defendant.

Key legal issues

#
01

Mode of bringing the application - notice of motion within an existing suit versus a fresh plaint

Holding

The preliminary objection failed; the wrong procedure did not render the proceedings fatally defective.

Reasoning

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.

p. 3
02

Nullification of transfers made pendente lite

Holding

The transfers were nullified under the doctrine of lis pendens as alienations intended to defeat the course of justice.

Reasoning

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.

p. 3
03

Section 26 of the Land Registration Act and indefeasibility of title

Holding

The court declined to rule on the section 26 aspect because the Plaintiff made no submissions on it.

Reasoning

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.

p. 2

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. 1.The Plaintiff's notice of preliminary objection dated 10th July 2017 dismissed with costs to the Defendant
  2. 2.The Defendant's notice of motion dated 30th May 2017 allowed in terms of prayer (d) thereof
  3. 3.The Plaintiff to bear the costs of the application dated 30th May 2017

Authorities

#

Legislation

  • Civil Procedure RulesOrder 3 Rule 1
  • Land Registration Actsection 26
  • Constitution of KenyaArticle 159(2)
  • Environment and Land Court Actsection 19(1)
  • Civil Procedure Actoverriding objective
  • Registration of Titles Act (repealed)
  • Indian Transfer of Property Act, 1882 (repealed)

Cases cited (7)

  • Carol Silcock Vs Kassim Sharrif Mohamed
    [2013] eKLR
  • Mradula Suresh Kantaria Vs Nuresh Nanillal Kaptaria
    Civil Appeal No. 277 of 2005
  • Ngomeni Swimmers Ltd Vs Commissioner of Lands and 25 others
    [2031] eKLR
  • Wakf Commissioners Vs Mohammed Bin Umeya Bin Abdulmajid Bin Muijabu
    [1984] KLR 346
  • Boyes Vs Gathure
    [1969] EA 385
  • Mawji Vs US International University and Another
    [1976] KLR 229
  • Bellany Vs Sabime
    [1859] De. G & J 556
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.