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ELCDismissedKajiado Civil Appeal No. 10 of 2018· [2021] KEELC 3976 (KLR)

Loise Warigia Njoroge v Stanley Manyara And Nancy Manyara, Pius Waruiri Mukuria, E. Gitau Ng’ang’a t/a Trend Auctions Limited, Ntemi Holdings & Gideon K. Meenye [2021] KEELC 3976 (KLR)

Environment and Land Court of Kenya
8 March 2021
COChristine Ochieng
2,863 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that only the court which issued an order can review it, and transferring disputed land during a lawsuit violates the law.

What this practically means

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Executive summary

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The Environment and Land Court at Kajiado, per Christine Ochieng, J, heard a first appeal by Loise Warigia Njoroge against a ruling of Hon. E.A. Mbicha (RM) delivered on 23rd May 2014 in Kajiado SRMCC No. 351 of 2006. The impugned ruling allowed the 2nd Respondent's application to review and set aside ex parte orders of 28th July 2011 that had lifted a court order registered against land parcels Kajiado/Ol Kasasi/1011 and 1012, and directed cancellation of register entries made thereafter. The Appellant, who had acquired the parcels during the pendency of the lower court suit, obtained the ex parte orders after allegedly serving the 2nd Respondent, then transferred the land to third parties. Her appeal argued non-joinder of third parties, breach of the right to be heard, lack of jurisdiction, absence of grounds for review, and failure to cross-examine the process server. The court framed four issues: whether the Magistrate erred, whether he had jurisdiction, whether the appeal was merited, and costs. Relying on section 80 of the Civil Procedure Act and Order 45 rule 1(1), the court held that review lies only to the court that passed the order, so the Magistrate had jurisdiction. Since the Appellant never proved service, there was an error apparent on the face of the record justifying review. Her transfer of land under pending litigation offended lis pendens, per Mawji v US International University, and she came to equity with unclean hands. Third parties have a remedy against her or may seek joinder. The appeal was dismissed with costs to the 2nd Respondent and the ruling of 23rd May 2014 was upheld.

Key legal issues

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01

Whether the lower court had jurisdiction to review its own orders of 28th July 2011

Holding

The Magistrate had jurisdiction, as review lies only to the court that passed the order

Reasoning

Section 80 of the Civil Procedure Act and Order 45 rule 1(1) of the Civil Procedure Rules allow an aggrieved party to seek review from the court that passed the decree or order. Since the orders of 28th July 2011 were made by the lower court, that court alone could review or set them aside. The jurisdictional challenge was therefore unmerited.

p. 3
02

Whether the Magistrate erred in setting aside the ex parte orders without enjoining the third parties who purchased the land

Holding

No error; the Appellant obtained ex parte orders without proving service and hastily transferred land subject to pending litigation, contrary to lis pendens

Reasoning

The Appellant failed to make the process server available for cross-examination and thus never proved service on the 2nd Respondent, making the ex parte orders irregular. She then transferred the suit land to third parties while the suit was pending, contrary to the doctrine of lis pendens. The third parties have a remedy against her and may seek to be enjoined in the lower court suit.

p. 3

Legal principles established

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  • A party can only seek review or setting aside of an order from the court that passed the previous order
  • Transfer of land that is the subject of pending litigation offends the doctrine of lis pendens

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the 2nd Respondent
  3. 3.The Ruling delivered by Hon. E. A Mbicha on 23rd May, 2014 in Kajiado SRMCC No. 351 of 2006 is upheld

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Civil Procedure ActSection 80
  • Civil Procedure RulesOrder 45 rule 1(1)
  • Land Registration ActSection 107
  • Transfer of Property ActSection 52

Cases cited (6)

  • Benson Mwangi Wangai V Ibrahim Ndwiga & Another
    (2015) eKLR
  • Stephen Oddiaga t/a Stephen Oddiaga & Co. Advocates V Christopher Happe
    (2014) eKLR
  • Amayi Okumu Kasiaka & 2 others V Moses Okware Opari & Another
    (2013) eKLR
  • Peters vs Sunday Post Limited
    [1985] EA 424
  • Mawji vs US International University & another
    [1976] KLR 185
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & another
    [2015] Eklr
On appeal from
Chief Magistrate's Court at Kajiado
Kajiado SRMCC No. 351 of 2006
Jurisdiction invoked
Appeal to the Environment and Land Court against a ruling of the subordinate court (first appellate jurisdiction)

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, "Loise Warigia Njoroge v Stanley Manyara And Nancy Manyara, Pius Waruiri Mukuria, E. Gitau Ng’ang’a t/a Trend Auctions Limited, Ntemi Holdings & Gideon K. Meenye [2021] KEELC 3976 (KLR)", Case Analysis (2021). Kajiado Civil Appeal No. 10 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3976/eng@2021-03-08

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