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ELCDismissedELC Appeal No. E005 of 2021· [2021] KEELC 666 (KLR)

John Bariu Domisiano v Lucy Mwaromo Mungania & another [2021] KEELC 666 (KLR)

Environment and Land Court
1 December 2021
4,370 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that land bought while a case over it was pending can still be lost to whoever wins that case.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Chuka against a ruling of Chief Magistrate J. M. Njoroge delivered on 2nd December 2020 in Chuka CMCC No. 132 of 2015, dismissing the Appellant's application dated 20th December 2019. That application had sought stay of execution, setting aside of an ex parte judgement of 2nd November 2016, joinder of the Appellant as an interested party, and an inhibition over land parcel MWIMBI/C.MAGUTUNI/1153. The Appellant, a self-described purchaser and registered proprietor of the suit land, argued he had an identifiable stake, a constitutional right to be heard, and that the trial court wrongly held itself functus officio. The 1st Respondent, the successful plaintiff in the trial suit, countered that the Appellant's transfer was effected on 12th July 2016 during the pendency of the suit and was defeated by lis pendens, that the Appellant knew of the suit by March 2018 yet delayed, and that the trial court was functus officio. The ELC considered Order 10 rule 11 of the Civil Procedure Rules, the functus officio doctrine and its exceptions, and the Muruatetu thresholds for joinder of interested parties. It held that the ex parte judgement was regularly entered, that the trial court rightly found itself functus officio and the Appellant a stranger without locus, that lis pendens applied to the mid-suit transfer, and that the Appellant failed to meet the joinder threshold having not moved promptly upon learning of the suit. The appeal was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether the trial court correctly found itself functus officio and the Appellant a stranger without locus to challenge the concluded ex parte judgement

Holding

The trial court rightly found it was functus officio and that the Appellant lacked locus to challenge a concluded case in which he was not a party

Reasoning

The suit was regularly concluded by ex parte judgment on 2nd November 2016 after due service. The functus officio doctrine bars merit-based re-engagement once final judgment is entered, save for exceptions such as the slip rule under section 99 of the Civil Procedure Act and review. The Appellant's application sought a merit-based re-opening of a concluded suit, which the court could not entertain.

p. 4
02

Whether the doctrine of lis pendens defeated the Appellant's interest as transferee of the suit property

Holding

The transfer of the suit property to the Appellant on 12/7/2016 during the pendency of the suit was subject to the doctrine of lis pendens

Reasoning

The suit was filed on 20th July 2015 and the transfer occurred on 12th July 2016 while the litigation was pending. Lis pendens, enacted through section 52 of the Indian Transfer of Property Act, binds purchasers of litigated property as if they had notice. The Appellant therefore acquired no better title than the defendant and could not claim to be an undefended bona fide purchaser.

p. 4
03

Whether the Appellant satisfied the threshold for joinder as an interested party

Holding

The Appellant failed to satisfy the joinder threshold; he knew of the suit from March 2018 but did not promptly seek joinder

Reasoning

Citing Muruatetu, an intending interested party must demonstrate a clearly identifiable personal stake, prejudice from non-joinder, and the relevance of its submissions. Joinder is discretionary, not of right, and may be refused where it occasions delay or introduces incompatible causes of action. The Appellant participated in the application dated 22nd March 2018, was thus aware of the suit, yet made no joinder application then; the lis pendens doctrine further undermined his claim.

p. 5

Legal principles established

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  • Functus officio bars merit-based re-engagement with a concluded case, subject to limited exceptions such as the slip rule and review
  • Lis pendens binds a purchaser of property acquired during pending litigation as if he had notice of the suit
  • Joinder of an interested party is discretionary and requires demonstration of identifiable personal interest, prejudice from non-joinder, and the relevance of the submissions the party intends to make

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 99 (slip rule)
  • Civil Procedure RulesOrder 1 rule 10(2)
  • Civil Procedure RulesOrder 7 rule 9
  • Civil Procedure RulesOrder 10 rule 2
  • Civil Procedure RulesOrder 10 rule 11
  • Civil Procedure RulesOrder 21 rule 3(3)
  • Constitution of Kenya, 2010
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2 & 7
  • Indian Transfer of Property Actsection 52

Cases cited (13)

  • Judicial Service Commission Vs Speaker of the National Assembly & another
  • Brek Sulum Hemed v Constituency Development Fund Board & another
    (2014) eKLR
  • Owners of the motor vessel 'Lilian S' -V- Caltex Oil (Kenya) Ltd
    (1989) KLR
  • William Ntomauta M'ethanga Sued As M'mauta Nkari v Baikiamba Kirimania
    (2017) eKLR
  • Richard Ncharpi Leiyagu v Independent Electoral Boundaries Commission & 2 others
    (2013) eKLR
  • CMC Holdings Limited vs James Mumo Nzioki
    (2004) eKLR
  • James Kanyita Nderitu & another –vs- Marios Philotas Ghikas & another
    (2016) eKLR
  • Telkom Kenya Limited –v- John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited
    (2014) eKLR
  • Raila Odinga & 2 others v Independent Electoral & Boundaries Commission & 3 others
    Petition No. 5 of 2013
  • Mawji vs US International University & another
    (1976) KLR 185
  • Francis Karioki Muruatetu & Another v Republic & 5 others
    Petition 15 as consolidated with 16 of 2013 (2016) eKLR
  • Lucy Nungari Ngigi and 128 others v National Bank of Kenya Limited and another
  • Jersey Evening Post Limited –Vs- A. Thani
    [2002] JLR 542
On appeal from
Chief Magistrate's Court at Chuka
Chuka CMCC No. 132 of 2015
Jurisdiction invoked
First appeal from the ruling of the Chief Magistrate in Chuka CMCC No. 132 of 2015

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, "John Bariu Domisiano v Lucy Mwaromo Mungania & another [2021] KEELC 666 (KLR)", Case Analysis (2021). ELC Appeal No. E005 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/666/eng@2021-12-01

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