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ELCAllowedNotice of Motion dated 26th June 2018 in Plaint dated 18th February 2010 (ELC case transferred to Thika)· [2019] KEELC 1442 (KLR)

George Muiruri & another v Paul Kagunda Njenga & 3 others [2019] KEELC 1442 (KLR)

Environment and Land Court
4 October 2019
4,079 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan land court froze disputed property mid-case, ruling that land cannot be sold or charged while a lawsuit over it is still pending.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Thika (L. Gacheru J) determined a Notice of Motion dated 26th June 2018 filed by the Plaintiffs mid-trial in a land ownership dispute over four parcels arising from membership numbers 433 and 434 in Kanunga Farmers Co-operative Society Ltd. The Plaintiffs, who claimed their late father's shares were fraudulently converted to the benefit of their step-mother's family, sought leave to amend their Plaint, joinder of the Land Registrar Kiambu and two subsequent transferees of Tinganga/Cianda Block 1/218 as Defendants, and conservatory orders preserving the suit properties. The Defendants opposed the application as an abuse of process brought after closure of pleadings and after one Plaintiff had testified, alleging inordinate delay and afterthought. The court framed three issues: joinder and amendment, entitlement to conservatory orders, and costs. Applying Order 1 Rule 10(2) and Order 8 Rule 3(1) of the Civil Procedure Rules, Sections 1A, 1B, 3A and 100 of the Civil Procedure Act, and cited authorities, the court held the three intended Defendants necessary parties for effectual and complete adjudication, allowed the amendments as introducing no new cause of action and avoiding multiplicity of suits, and granted conservatory orders because the Defendants had breached the doctrine of lis pendens by transferring and charging the suit property during the pendency of the suit despite the dismissal of an earlier injunction application in 2010. The application was allowed entirely, with costs to the Plaintiffs.

Key legal issues

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01

Joinder of the Land Registrar Kiambu, Elias Kamau Kamonderu and Samuel Wangece Kanyi as Defendants

Holding

The three intended Defendants are necessary parties and were joined as 5th, 6th & 7th Defendants because the outcome of the case might affect their ownership and their presence avoids multiplicity of suits.

Reasoning

The court applied Order 1 Rule 10(2) and the authorities holding that a person whose interests would legally be affected by the orders sought, or whose presence is necessary for effectual and complete adjudication, should be joined. The registered owners of the suit property which changed hands during the suit, and the Land Registrar accused of failing to register cautions, were held necessary so that evidence against the Registrar is not taken in his absence.

p. 4
02

Whether leave to amend the Plaint should be granted

Holding

The amendments were allowed as necessary for determining the real question in controversy, avoiding multiplicity of suits, and introducing no new cause of action.

Reasoning

Relying on Order 8 Rule 3(1), Section 100 of the Civil Procedure Act and Central Kenya Ltd v Trust Bank Ltd, the court held that amendments may be allowed at any stage if necessary to determine the real question, provided no prejudice or injustice is occasioned. Since one suit property had changed hands twice, the amendment avoided a fresh suit against the new registered owner and did not introduce a new cause of action.

p. 5
03

Whether conservatory orders should issue over the suit properties

Holding

Conservatory orders were granted because the Defendants had acted contrary to the doctrine of lis pendens by transferring and charging the suit property during the pendency of the suit.

Reasoning

Although an injunction application was dismissed in 2010, circumstances had changed: the suit property was transferred on 15th March 2012 and again on 3rd April 2017, and charged to Co-operative Bank of Kenya and later Unaitas SACCO Society Ltd during the pendency of the suit. Preservation was necessary to prevent further alienation to non-parties and to facilitate the overriding objective.

p. 5
04

Costs of the application

Holding

The Defendants were ordered to bear the costs because their transactions on the suit property occasioned the application.

Reasoning

The court found that the Defendants brought about the necessity to file the application by allowing transfer of one of the suit properties before the suit was heard and determined, and the Plaintiffs as successful litigants were entitled to costs.

p. 5

Legal principles established

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  • Lis pendens overrides a title obtained during the pendency of proceedings touching on the property and prohibits transfer of property pending determination of the litigation.
  • A person may be joined in a suit because their presence is necessary to enable the court effectually and completely adjudicate upon all questions in the suit.
  • Amendments should be freely allowed at any stage of proceedings provided no prejudice or injustice that cannot be compensated in costs is caused to the other party.

Court orders

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  1. 1.Leave granted to the Plaintiffs to amend their Plaint in terms of the Draft Amended Plaint annexed to the application
  2. 2.The Land Registrar, Kiambu Land Registry, Elias Kamau Kamonderu and Samuel Wangece Kanyi enjoined as Defendants (5th, 6th & 7th Defendants) in the suit
  3. 3.Conservatory orders restraining the Defendants, their servants, employees and/or authorized agents from selling, charging, alienating, disposing, excavating, constructing, interfering with and/or doing anything prejudicial to land titles Tinganga/Cianda Block 1/214/218/2073/2097 pending determination of the suit
  4. 4.Costs of the application to be borne by the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A & 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 100
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 8 Rule 3(1)

Cases cited (4)

  • In Re Estate Of Solomon Muchiri Macharia
    [2016] eKLR
  • Andy Forwardes Services Ltd & Another…Vs…PricewaterhouseCoopers Ltd & Another
    (2012) eKLR
  • Departed Asians Property Custodian Board…Vs…Jaffer Brothers Ltd
    (1999) 1EA 55 (SCU)
  • Central Kenya Ltd…Vs…Trust Bank Ltd & 4 Others
    Civil Appeal No.222 of 1998
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 1 Rule 10(2) and Order 8 of the Civil Procedure Rules; Section 100 of the Civil Procedure Act

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, "George Muiruri & another v Paul Kagunda Njenga & 3 others [2019] KEELC 1442 (KLR)", Case Analysis (2019). Notice of Motion dated 26th June 2018 in Plaint dated 18th February 2010 (ELC case transferred to Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1442/eng@2019-10-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.