Josphat Mbogo Kaguongo & another v Geoffrey Muriuki Kimondo & 3 others [2020] KEELC 1930 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Applicability of the doctrine of lis pendens to interlocutory injunctive relief
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
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.
Test for temporary injunction
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
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.
Legal principles established
#- 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
#- 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.Costs to abide the event
- Jurisdiction invoked
- Order 40 Rules 1 & 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.