Jane Jepyegon Morwabe v Godfrey Morwabe Onkundi & 3 others [2020] KEELC 670 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that land sold during a live court case stays frozen, protecting a spouse's claim without evicting the current occupier.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court erred in refusing the interlocutory injunction
The appeal was allowed; the trial court took into account extraneous factors, failed to consider lis pendens, and the ruling was set aside and substituted with an injunction preserving the suit property
The trial court had found a prima facie case but refused the injunction on irreparable harm and balance of convenience. On appeal, the court held that the value of the property was ascertainable and damages would compensate, but that justice required preservation of the property. The trial court's finding that the appellant benefited from the sale price was unsupported by evidence and condemned her unheard, constituting extraneous considerations. The trial court also erred in ignoring the doctrine of lis pendens.
Whether the suit property is matrimonial property
Not determined finally; contribution, whether monetary or non-monetary under section 2 of the Matrimonial Property Act, must be proved, and can only be ascertained at trial
The appellant claimed she took a loan of Kshs.150,000 and contributed to acquiring and developing the property, which was registered in the 1st Respondent's name in trust. The 2nd Respondent vigorously challenged this. The court held that proof of contribution is a necessary ingredient of matrimonial property and is a matter for the trial. The prima facie case finding was not contested on appeal.
Balance of convenience and preservation of the suit property
The balance of convenience favoured preservation of the suit property pending trial, applying the principle that the court should take the course carrying the lower risk of injustice
Guided by Films Rover International as cited in Amir Suleiman v Amboseli Resort Limited, the court held it would be in the best interest of justice to preserve the property. It balanced this by allowing the 2nd Respondent, who was in occupation and had developed the land, to continue plucking tea while rendering monthly accounts to the appellant.
Applicability of the doctrine of lis pendens
The doctrine applies notwithstanding the repeal of section 52 ITPA, via section 107(1) of the Land Registration Act and section 3(1) of the Judicature Act, and the trial court erred in failing to consider it
Relying on Naftali Ruthi Kinyua v Patrick Thuita Gachure, the court endorsed Bellamy v Sabine's rationale that alienation pendent lite would defeat successful litigation. Though section 52 ITPA was repealed, section 107(1) LRA preserves rights and interests from prior legislation, and the doctrine survives as a common law principle under the Judicature Act.
Legal principles established
#- An appellate court may interfere with a discretionary decision on injunctions only where the trial court misdirected itself on the law, misapprehended the facts, took into account irrelevant considerations, failed to take into account relevant considerations, or was plainly wrong
- Contribution, whether monetary or non-monetary, is a necessary ingredient in establishing whether property is matrimonial property, and can only be determined at trial
- A court at the interlocutory stage must not delve into substantive issues or condemn a party without hearing oral evidence
- The doctrine of lis pendens remains applicable in Kenya following the repeal of section 52 of the ITPA, by virtue of section 107(1) of the Land Registration Act and section 3(1) of the Judicature Act
Court orders
#- 1.Set aside the ruling and order of the subordinate court dismissing the application dated 19th August 2019
- 2.An injunction restraining the 2nd Respondent from selling, disposing of, charging, alienating, carrying out any development and/or constructions of whatever nature on LR No. North Mugirango/Bonyarorande/1929 pending the hearing and determination of the suit before the magistrate's court
- 3.The 2nd Respondent shall continue to pluck the tea on the suit property and shall on a monthly basis render an account, including cash receipts, delivery and/or collection documents, to the appellant in respect of tea leaves plucked from the suit property and delivered at Kebirigo Tea Factory Limited and/or any other tea factory, pending the hearing and determination of the suit
- 4.The main suit shall be listed for hearing on priority basis
- 5.Costs shall abide the determination of the main suit
- On appeal from
- Magistrate's Court
- Original suit in the subordinate court (number not stated)
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's ruling (provisions not expressly stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jane Jepyegon Morwabe v Godfrey Morwabe Onkundi & 3 others [2020] KEELC 670 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/670/eng@2020-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.