Charles Munga Kipsang v Patrick Telewa Nabiswa & another [2020] KEELC 3872 (KLR)
The bottom line
#A Kenyan court froze all dealings on disputed land and added the new owner to the case, showing land bought during a lawsuit can still be pulled into it.
What this practically means
#Executive summary
#Key legal issues
#Joinder of a transferee of subdivided portions of the suit land
The proposed Co-Respondent, now proprietor of resultant sub-divisions, was properly enjoined as 2nd Respondent to avoid condemning him unheard and to allow complete adjudication
The Respondent admitted subdividing the suit land during the pendency of the suit and transferring two portions to the proposed Co-Respondent. Under Order 1 Rule 10(2) CPC the court may add a person whose presence is necessary to settle all questions. Since any judgment in the Originating Summons would affect the transferred parcels, joinder protected the Co-Respondent's right to be heard and caused no prejudice.
Entitlement to an order of inhibition under Section 68(1) of the Land Registration Act
Inhibition granted because portions had already been transferred pending suit and further dealings would prejudice the Applicant
An inhibition, like a prohibitory injunction, restrains registration of dealings in disputed land. The Applicant showed the Respondent had subdivided and transferred portions during the suit. Although the court criticised the Applicant's delay in prosecuting the suit, it found inhibition necessary to preserve the parcels pending determination.
Legal principles established
#- The court has power, even suo motu, to add any person as a party whose presence is necessary to effectually and completely adjudicate on all questions in the suit
- Before making an inhibition order the court must be satisfied the land is at risk of disposal or alienation to the detriment of the applicant, which would render the suit academic
Court orders
#- 1.Saul Wekesa Nyongesa be and is hereby enjoined in this suit as the 2nd Respondent; the amended Originating Summons be filed and served upon him within 14 days of the ruling
- 2.The 2nd Respondent shall have 14 days from service of the amended Originating Summons to file and serve his response
- 3.An order of inhibition restraining the Respondents, their servants or agents from transferring, sub-dividing or registering any dealings with parcels EAST BUKUSU/NORTH SANG'ALO/6572, 6573 and 6574 (originally 967) pending hearing and final determination of the suit
- 4.Costs shall be in the cause
- Jurisdiction invoked
- Sections 3 and 3A of the Civil Procedure Act, Sections 68 and 69 of the Land Registration Act and Order 1 Rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Munga Kipsang v Patrick Telewa Nabiswa & another [2020] KEELC 3872 (KLR)", Case Analysis (2020). Originating Summons dated 14th January 2014 (Bungoma). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3872/eng@2020-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.