Nancy Nyawira & another v Archer Dramond Morgan Ltd; Chief Land Registrar & another (Interested Parties) [2020] KEELC 2725 (KLR)
The bottom line
#If you buy or lend against land while a court case over it is pending in Kenya, your purchase and any mortgage on it can be voided entirely.
What this practically means
#Executive summary
#Key legal issues
#Effect of the doctrine of lis pendens on the sale and subsequent charge of the suit property
The sale to Crispin Musundi and the charge to the 2nd Interested Party were null and void because the sale occurred during the pendency of the suit and after the arbitral award
The court traced the doctrine from Bellamy v Sabine through Mawji and Carol Silcock, holding that litigation must be allowed to end and that purchasers pendente lite are bound by the judgment as though they had notice. The Defendant sold the property after the Arbitrator had ruled in favour of the Plaintiffs; such conduct was unlawful and intended to defeat the course of justice, so neither the purchaser nor the chargee can derive any title from it.
Whether the 2nd Interested Party could set aside the proceedings and the adopted award as a stranger condemned unheard
No; the chargee cannot set aside the proceedings or the award because its interest derives from a void transfer, and its only recourse is against the Defendant for damages
Although the 2nd Interested Party argued it would be condemned unheard contrary to natural justice, the court held that the ownership dispute was conclusively settled by the arbitrator and adopted by the court. The 2nd Interested Party would have nothing to add even if proceedings were re-opened. The purchaser and chargee hold mere papers conferring no proprietorship interest and may only sue the Defendant for damages.
Legal principles established
#- A transfer of suit property during the pendency of litigation, and after an arbitral award, is null and void, as is any subsequent charge by the alienee
- In the absence of an injunction, a party may dispose of property but the final judgment binds the third party as though the sale never took place
Court orders
#- 1.The Application dated 29th August, 2019 is dismissed with costs to the Plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a suit referred to arbitration and the arbitral award adopted as a decree of the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nancy Nyawira & another v Archer Dramond Morgan Ltd; Chief Land Registrar & another (Interested Parties) [2020] KEELC 2725 (KLR)", Case Analysis (2020). Notice of Motion dated 29th August, 2019 in the main suit (Plaint dated 20th April, 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2725/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.