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ELCAllowedNotice of Motion dated 28th August 2019 (the underlying suit number is not stated in the judgment)· [2019] KEELC 284 (KLR)

Mary Wambui Warui & 4 others v John Njama Mwangi & another [2019] KEELC 284 (KLR)

Environment and Land Court
13 December 2019
1,359 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This was a Notice of Motion dated 28th August 2019 under Order 40 Rule 1 & 2 of the Civil Procedure Rules in which the plaintiffs, through the affidavit of the 5th plaintiff Faith Muthoni Munene, sought a temporary injunction restraining the defendants from interfering with their quiet possession, use and enjoyment of land parcels MUTITHI/CHUMBIRI/975, 976, 977 and 978 and from selling, disposing of, charging or alienating the original parcel MUTITHI/CHUMBIRI/493 pending hearing of the suit. The applicants traced their titles through successive transfers and sub-division of the original parcel, which was closed on sub-division on 20th January 2000, and contended that a Land Disputes Tribunal award relied on by the respondents was null and void for want of jurisdiction and related to a non-existent parcel. The respondents, through John Njama Mwangi, asserted registered ownership of the original parcel restored by the Wanguru Land Disputes Tribunal award in Arbitration Case No. 31 of 2004 and urged that the applicants were strangers with no protectable claim. The court, framed the question as which of the two competing interests was superior, but rather than decide that at the interlocutory stage, held that the doctrine of lis pendens should apply to restrain dealing with the suit property pending full trial. Relying on Bellamy v Sabine and Bernadette Wangare Muiru v NSSF, and on the saving provisions of Section 107(1) of the Land Registration Act, the court allowed the application in terms of prayer No. 3, with costs in the cause.

Key legal issues

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01

Grant of a temporary injunction

Holding

The application was merited and allowed in terms of prayer No. 3, restraining the respondents from dealing with the suit properties pending full hearing

Reasoning

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.

p. 2
02

Continued applicability of lis pendens after repeal of Section 52 of the ITPA

Holding

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

Reasoning

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.

p. 3
03

Effect of the Land Disputes Tribunal award on title

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.The costs of the application shall be costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1 & 2
  • Land Disputes Tribunal ActNo. 18 of 1990 (now repealed)
  • Land Registration ActNo. 3 of 2013; Section 107(1)
  • Indian Transfer of Property ActSection 52 (repealed)

Cases cited (3)

  • Giella Vs Cassman Brown
    (1973) E.A at page 358
  • Bellamy Vs Sabine
    (1857) 1 De 566
  • Bernadette Wangare Muiru Vs National Social Security Fund Board of Trustees & 2 others
    (2012) e K.L.R
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

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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, "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.