Grace Kamene v Joyce Rigiri W/O David Mbogori; Ashford Gerrard Riungu & another (Interested Parties) [2022] KEELC 1827 (KLR)
The bottom line
#Land sold while a court case was pending was taken back, so buyers must check for ongoing litigation before purchasing Kenyan property.
What this practically means
#Executive summary
#Key legal issues
#Whether subdivisions and transfers of suit land during a pending appeal with a stay of execution breached lis pendens
Yes - the respondents and interested parties illegally alienated the suit parcels during the pendency of the appeal and in breach of the doctrine of lis pendens
The court found it undisputed that a stay of execution was consented to on 24.11.2015 and that the 1st interested party was the respondents' advocate until judgment on 29.6.2016. During the pendency of the appeal, the respondents caused subdivisions and transfers on 12.2.2016 in favour of the 1st and 2nd interested parties. The 1st interested party, as counsel who consented to the stay, was not a mere bystander but knowingly participated in transactions intended to remove the properties from the reach of the court, which was suspect, illegal and unlawful.
Whether the 1st interested party was a bonafide proprietor of L.R No. 1151
No - he produced no transfer forms, land control board consents or written agreements to establish bonafide acquisition
The court noted the 1st interested party attached no transfer forms, land control board forms or agreements compliant with Section 3(3) of the Law of Contract Act, Section 38 of the Land Act, or the Land Control Act. Having participated in transactions undermining the court's authority while knowing of the pending appeal and stay, he could not claim bonafide purchaser protection.
Remedies for breach of lis pendens
Parties to be restored to the position existing at the date of the stay; subsequent subdivisions and transfers invalidated and titles reverted to L.R Nos. 671 and 672
Applying the doctrine of lis pendens and its statutory backing, the court held that the interest of justice required restoration of the status quo ante the consent stay. It invalidated all post-stay subdivisions and transfers, directed the Land Registrar and Surveyor to implement the Court of Appeal decree, dispensed with production of original title deeds which the respondents refused to surrender, and authorised the Deputy Registrar to sign the necessary transfer documents.
Legal principles established
#- Alienation of suit land during pendency of litigation offends the doctrine of lis pendens and transactions done to defeat a decree will be invalidated
- A transferee pendent lite is bound by the decree as if a party to the suit
- Counsel who participates in transactions defeating pending litigation cannot claim bonafide purchaser status
Court orders
#- 1.All subsequent subdivisions and transfers after the date of the stay are invalidated and the titles shall revert to L.R Nos. 671 and 672
- 2.The Land Registrar and Land Surveyor ordered to implement the Court of Appeal decree with surrender of original title deeds dispensed with
- 3.The Deputy Registrar to sign the necessary transfer documents and consents to effect the Court of Appeal decree in favour of the plaintiff
- 4.Costs to the plaintiff
- Jurisdiction invoked
- Not expressly stated; the court executes a Court of Appeal decree in original proceedings before the Environment and Land Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Kamene v Joyce Rigiri W/O David Mbogori; Ashford Gerrard Riungu & another (Interested Parties) [2022] KEELC 1827 (KLR)", Case Analysis (2022). Not stated in the extract (Amended Notice of Motion dated 27.10.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1827/eng@2022-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.