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ELCPartially AllowedNot stated in judgment (application under Order 45 of the Civil Procedure Rules)· [2021] KEELC 2262 (KLR)

Agripina Nekesa Wafula v Vincent Wesonga Osimata [2021] KEELC 2262 (KLR)

Environment and Land Court (court not expressly named; judge sitting at Busia)
11 August 2021
2,054 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court revoked land subdivisions made while a lawsuit was pending, confirming buyers cannot escape a court judgment over land they bought mid-case.

What this practically means

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Executive summary

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The Applicant, decree holder in a land suit, moved the court by notice of motion under Order 45 of the Civil Procedure Rules seeking review of the decree delivered on 18 February 2019 by revoking subdivisions of L.R. Bukhayo/Mundika/329 creating parcels 13998, 13999 and 14000, so as to enable execution. She contended the Respondent subdivided the land while the case was pending, frustrating execution, and explained her delay in filing by ill health. The Respondent opposed, arguing the application duplicated a withdrawn one, was an abuse of process, and that the Applicant occupied a quarter acre (parcel 13999, 0.337Ha), not the 2.0Ha claimed. An Interested Party, a purchaser of part of the land, also opposed. The court applied section 80 of the Civil Procedure Act and Order 45 Rule 1, and the doctrine of lis pendens as explained in Mawji v US International University and Naftali Ruthi Kinyua v Patrick Thuita Gachure. It found the subdivision on 28 May 2018 occurred before judgment and in contravention of a restriction on the title, that the Respondent produced no confirmed grant or order lifting the restriction, and that the trial judge lacked this information when delivering judgment. The court declined to determine whether the Applicant occupied a quarter acre or 2.0Ha, holding that was not a matter for review. The review was granted, the subdivisions revoked for purposes of execution, and costs awarded to the Applicant.

Key legal issues

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01

Grounds for review under Order 45 Rule 1

Holding

The Applicant established discovery of new and important matter - the subdivision of the suit title pending judgment - which was not within her or the court's knowledge, constituting sufficient reason for review

Reasoning

The court found that the subdivision of L.R. Bukhayo/Mundika/329 on 28 May 2018 occurred before judgment on 18 February 2019 and in contravention of a restriction. The trial judge did not have this information when delivering judgment, and it would have changed part of the orders. The delay was explained by illness, though unsupported by evidence, but the new matter justified review.

p. 2
02

Doctrine of lis pendens

Holding

The subdivision undertaken while the matter was pending judgment contravened the doctrine of lis pendens, and purchasers pendente lite are bound by the judgment

Reasoning

Relying on Mawji v US International University and Naftali Ruthi Kinyua v Patrick Thuita Gachure, the court held that lis pendens applies pursuant to section 107 of the Land Registration Act, prohibits parties from conferring rights over litigated property pending suit, and binds purchasers who are presumed to know of pending litigation.

p. 2
03

Lack of proof of authority for subdivision

Holding

The Respondent failed to show a confirmed grant for the deceased's estate or a court order lifting the restriction, undermining his justification for the subdivision

Reasoning

The Respondent explained the subdivision as allocation to beneficiaries of the estate of Desiranda Akawyait Osumata, but produced no confirmation of grant or order lifting the restriction placed on the suit land, so the subdivision stood in contravention of the restriction and could not defeat execution of the decree.

p. 2

Legal principles established

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  • Subdivision or dealing with land pending litigation is prohibited by the doctrine of lis pendens, which binds even purchasers without notice
  • Review may be granted where there is discovery of new and important matter or sufficient reason, provided the application is made without unreasonable delay

Court orders

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  1. 1.The application for review is granted
  2. 2.An order made revoking the subdivisions undertaken on the suit title L.R. Bukhayo/Mundika/329 which created L.R. Bukhayo/Mundika/13998, 13999 and 14000, for purposes of execution
  3. 3.Costs of the application awarded to the Applicant

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure Actsection 80
  • Transfer of Property Act (TPA)section 52
  • Registration of Titles Act (RTA)section 23
  • Land Registration Actsection 107

Cases cited (5)

  • ECM Chelimo Squatters Group & Another vs. Langat Joel & Others (sued as the Management Committee of Chelimo Squatters)
    2016 eKLR
  • Stephen Gathua Kimani vs. Nancy Wanjira Waruingi t/a Providence Auctioneers
    (2016) eKLR
  • Mawji vs US International University & another
    [1976] KLR 185
  • Naftali Ruthi Kinyua V Patrick Thuita Gachure and Another
    (2015) eKLR
  • TOKESI MAMBILI & OTHERS VS. SIMION LITSANGA
    Civil Appeal No. 9 of 2001 at Kisumu
Jurisdiction invoked
Order 45 of the Civil Procedure Rules and section 80 of the Civil Procedure Act (review jurisdiction of the court that passed the decree)

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, "Agripina Nekesa Wafula v Vincent Wesonga Osimata [2021] KEELC 2262 (KLR)", Case Analysis (2021). Not stated in judgment (application under Order 45 of the Civil Procedure Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2262/eng@2021-08-11

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