George Muiruri & another v Paul Kagunda Njenga & 3 others [2019] KEELC 1442 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Joinder of the Land Registrar Kiambu, Elias Kamau Kamonderu and Samuel Wangece Kanyi as Defendants
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.
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.
Whether leave to amend the Plaint should be granted
The amendments were allowed as necessary for determining the real question in controversy, avoiding multiplicity of suits, and introducing no new cause of action.
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.
Whether conservatory orders should issue over the suit properties
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.
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.
Costs of the application
The Defendants were ordered to bear the costs because their transactions on the suit property occasioned the application.
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.
Legal principles established
#- 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
#- 1.Leave granted to the Plaintiffs to amend their Plaint in terms of the Draft Amended Plaint annexed to the application
- 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.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.Costs of the application to be borne by the Defendants/Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.