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ELCAllowedNotice of Motion dated 7th March 2019 in ELC Suit (Kerugoya)· [2020] KEELC 1930 (KLR)

Josphat Mbogo Kaguongo & another v Geoffrey Muriuki Kimondo & 3 others [2020] KEELC 1930 (KLR)

Environment and Land Court
30 April 2020
1,567 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked land transferred while a court case over that land was still ongoing, so buyers get no protection if litigation was pending.

What this practically means

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Executive summary

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The plaintiffs, biological brothers claiming a customary trust over land parcel MWERUA/KANYOKORA/117 (originally registered in the name of Johana Ndegwa Nyaga to hold in trust for their step-brother's family), moved the court by Notice of Motion dated 7th March 2019 under Order 40 Rules 1 & 2 CPR for a temporary injunction restraining the defendants from interfering with their possession and enjoyment of the resultant parcels Nos. MWERUA/KANYOKORA/937, 938, 939 and 940. They alleged the land was subdivided and transferred to the defendants during the pendency of the former suit, formerly HCCC No. 114 of 1991 (Nyeri), in which judgment was delivered on 6th July 2007 directing that the suit land be shared equally between the two families. The 3rd defendant, claiming to be a purchaser for value in exclusive possession, opposed the application, asserting non-disclosure, that the subject matter was still pending in ELC No. 56 of 2016 (Nyeri), and that the suit was res judicata. The court applied the Giella v Cassman Brown test but, noting the weighty competing interests, invoked the doctrine of lis pendens under Section 52 of the (repealed) Indian Transfer of Property Act as articulated in Bellamy v Sabine and Mawji v US International University. The court found the application merited and granted the temporary injunction on the doctrine of lis pendens pending hearing and determination of the suit, with costs to abide the event. Judgment was delivered at Kerugoya on 30th April 2020 by E.C. Cherono, ELC Judge.

Key legal issues

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01

Applicability of the doctrine of lis pendens to interlocutory injunctive relief

Holding

The Notice of Motion dated 7th March 2019 is merited and allowed on the doctrine of lis pendens pending hearing and determination of the suit

Reasoning

The applicants claimed customary trust interests against registered proprietors of parcels created by sub-division and transfer during the pendency of the former suit (formerly HCCC No. 114 of 1991, Nyeri). The court invoked Section 52 of the Indian Transfer of Property Act and the common law doctrine, holding that alienations pendente lite cannot defeat the pending litigation, and granted the injunction on that basis rather than on the merits of the trust claim.

p. 3
02

Test for temporary injunction

Holding

The Giella v Cassman Brown principles govern: prima facie case with probability of success, irreparable loss not compensable by damages, and balance of convenience if in doubt

Reasoning

The court restated the classical three-pronged test as the governing framework for the application, then turned to the competing claims. It framed the central question as whose claim between the customary-interest claimants and the registered proprietors was superior, and resolved the interlocutory question through the doctrine of lis pendens in the interest of justice.

p. 2

Legal principles established

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  • The doctrine of lis pendens, as a substantive law of general application, prohibits a party from giving third parties rights over property in dispute pending litigation, and a purchaser pendente lite is bound by the judgment as if he had notice

Court orders

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  1. 1.Temporary injunction restraining the Defendants/Respondents from interfering with the Plaintiffs' quiet possession, use and enjoyment of land parcels Nos. MWERUA/KANYOKORA/937, 938, 939 and 940 pending the hearing and determination of this suit
  2. 2.Costs to abide the event

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 & 2
  • Indian Transfer of Property Act (repealed)Section 52
  • Registration of Titles Act (repealed)Section 23

Cases cited (3)

  • Giella Vs Cassman Brown Co. Ltd
    (1973) E.A 358
  • Bellamy Vs Sabine
    (1857) 1 De J. 566
  • Mawji Vs Us International University & another
    (1976) K.L.R 185
Jurisdiction invoked
Order 40 Rules 1 & 2 of the Civil Procedure Rules

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, "Josphat Mbogo Kaguongo & another v Geoffrey Muriuki Kimondo & 3 others [2020] KEELC 1930 (KLR)", Case Analysis (2020). Notice of Motion dated 7th March 2019 in ELC Suit (Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1930/eng@2020-04-30

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