Simon Kipleting Kimei & another v Kiptanui Joshua Kimei; Wilfred Kipkolum Tirop (Interested party) [2022] KEELC 937 (KLR)
The bottom line
#Buying land in Kenya while a court case over it is ongoing gives you no protection, even if you paid good money without checking first.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant was entitled to a stay of the contempt purge order
The application was dismissed as the Applicant was not an innocent purchaser for value without notice; he bought and entered the suit land with knowledge of the status quo orders, and his claim was tainted by a forged court order and an unstamped transfer.
The court found from the Deputy Registrar's locus report and the Defendant's own affidavit that the Defendant, not the Applicant, was in occupation and constructing the house in 2018-2019. The transaction during pendency of the suit contravened lis pendens. The Applicant's title was further impugned by the absence of stamp duty and the alleged forged order of 26th June 2019. His remedy, if any, lay against the deceased Defendant's estate.
Whether the Plaintiffs were in contempt of the order of 14th January 2021
No contempt established; the temporary stay did not restrict the Plaintiffs, who were already utilizing specified portions of the suit land, and the Applicant failed to demonstrate with specificity any extension of cultivation.
The order of 14th January 2021 only stayed the Applicant's vacatur order and imposed no obligation on the Plaintiffs. The November 2018 orders never prohibited the Plaintiffs from cultivating the portions they occupied. The Applicant's assertion that the Plaintiffs extended their cultivation was unsupported by evidence such as a sketch map, so the contempt application failed.
Whether the sale transaction was invalid under lis pendens and stamp duty law
The transaction between the Defendant and the Applicant during the pendency of the suit contravened lis pendens, and the transfer apparently lacked a stamp duty stamp, contrary to section 46 of the Land Registration Act.
The court noted that status quo and inhibition orders of November 2018 were in place when the parties contracted in June 2019 and when transfer was registered on 28th July 2019. The Plaintiffs proved only an application for registration of the order, not registration itself, but the Defendant's knowledge of the suit sufficed. The unstamped transfer and forged order raised serious concerns about the authenticity of the Applicant's title.
Legal principles established
#- A transfer of land during the pendency of a suit over that land contravenes the doctrine of lis pendens.
- An instrument required to be stamped cannot be accepted for registration unless stamped in accordance with the Stamp Duty Act.
- A purchaser who enters land with knowledge of pending litigation and status quo orders is not an innocent purchaser, and any remedy for non-disclosure lies against the seller's estate.
- Civil cases lie in rem and bind a deceased's estate, so a purchaser's refund claim may be pursued against the estate of the deceased seller.
Court orders
#- 1.The Applicant's notices of motion dated 6th January 2021 and 15th April 2021 are dismissed with costs to the Plaintiffs.
- 2.Costs of the notice of motion dated 13th January 2021 (spent) shall be in the cause.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit land (Nandi/Ndalat Settlement Scheme/163) and interlocutory applications therein
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Simon Kipleting Kimei & another v Kiptanui Joshua Kimei; Wilfred Kipkolum Tirop (Interested party) [2022] KEELC 937 (KLR)", Case Analysis (2022). Not stated in the judgment extract (Notices of motion dated 6th January 2021, 13th January 2021 and 15th April 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/937/eng@2022-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.