Mary Wambui Warui & 4 others v John Njama Mwangi & another [2019] KEELC 284 (KLR)
The bottom line
#The Environment and Land Court blocked any sale or transfer of disputed Kirinyaga land while the case is decided, confirming buyers cannot rely on titles registered after a dispute began.
What this practically means
#Executive summary
#Key legal issues
#Grant of a temporary injunction
The application was merited and allowed in terms of prayer No. 3, restraining the respondents from dealing with the suit properties pending full hearing
The court applied the settled Giella v Cassman Brown principles. Both sides claimed superior rights over the suit property: the applicants as registered proprietors of the sub-divided parcels, the respondents as holders of title restored via a Land Disputes Tribunal award. Rather than determine superiority at interlocutory stage, the court invoked lis pendens to preserve the status quo pending trial.
Continued applicability of lis pendens after repeal of Section 52 of the ITPA
The doctrine survives the repeal of Section 52 of the Indian Transfer of Property Act by the Land Registration Act No. 3 of 2013, by virtue of the saving and transitional provisions in Section 107(1) of the LRA
Relying on Bernadette Wangare Muiru v NSSF Board of Trustees, the court held that rights, interests and obligations acquired before commencement of the LRA continue to be governed by prior law unless the contrary is provided. Section 107(1) LRA preserves the doctrine of lis pendens notwithstanding the repeal of Section 52 ITPA.
Effect of the Land Disputes Tribunal award on title
Not finally determined at this stage; the applicants contend the Tribunal lacked jurisdiction over land ownership and that its award is null and void, a question left for full trial
The applicants argued the Tribunal award in Arbitration Case No. 31 of 2004 at Wanguru was issued without jurisdiction under the repealed Land Disputes Tribunal Act and related to a parcel already closed on sub-division. The respondents maintained the award restored their father's title. The court did not resolve this conflict, preserving it for the full hearing.
Legal principles established
#- The doctrine of lis pendens may be applied to restrain parties from disposing of or dealing with suit property in a way that would defeat the applicant's interest pending full hearing
- After repeal of Section 52 of the ITPA by the Land Registration Act No. 3 of 2013, the doctrine of lis pendens remains applicable through the saving and transitional provisions of Section 107(1) of the LRA
Court orders
#- 1.The application dated 28th August 2019 is allowed in terms of prayer No. 3 thereof (temporary injunction restraining the respondents from interfering with the applicants' quiet possession, use and enjoyment of land parcels MUTITHI/CHUMBIRI/975, 976, 977 and 978 and/or selling, disposing, charging or alienating the properties pending the hearing and determination of the suit)
- 2.The costs of the application shall be costs in the cause
- Jurisdiction invoked
- Not expressly stated; application brought under Order 40 Rule 1 & 2 of the Civil Procedure Rules (injunctive relief pending determination of the suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wambui Warui & 4 others v John Njama Mwangi & another [2019] KEELC 284 (KLR)", Case Analysis (2019). Notice of Motion dated 28th August 2019 (the underlying suit number is not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/284/eng@2019-12-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.