Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissed· [2022] KEELC 3075 (KLR)

Marisin v Siwon & 27 others; Kichapa (Intended Interested Party) (Environment & Land Case 69 of 2005) [2022] KEELC 3075 (KLR)

Environment and Land Court
26 May 2022
4,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

#

A Kenyan land buyer lost her bid to join a court case because land bought while a lawsuit is ongoing stays bound by that suit's outcome.

What this practically means

#

Executive summary

#
This Environment and Land Court decision at Kericho by M.C. Oundo J dealt with two applications arising from a judgment of June 20, 2018 (amended July 26, 2018 under section 99 of the Civil Procedure Act) in a 2005 suit in which the Plaintiff obtained a declaration that the registration of the 1st to 27th Defendants over land parcel Transmara/Olosakwana 'B'/1117 was illegal, with resultant titles including parcel 1299 ordered cancelled. The first application, by Rose Chesang Kichapa, the registered proprietor of parcel 1299 since May 7, 2010, sought joinder and stay of execution, contending she was condemned unheard. The court held that she acquired the parcel during the pendency of the suit, that such alienation pendente lite breached the doctrine of lis pendens as articulated in Bellamy v Sabine and Kenyan authority, and that the doctrine binds third parties whether or not they had notice. Finding the application an ingenious attempt to delay execution, the court dismissed it with costs and declined to consider the stay issue. The second application, dated October 28, 2021, was brought by the 1st, 3rd to 8th, 10th to 19th and 26th Defendants through the firm of Geofirey Kipngetich and Company Advocates, seeking to come on record and to set aside or review the July 26, 2018 orders. It was unopposed, but the court held that compliance with Order 9 rule 9 is mandatory for a change of advocates after judgment, and since the firm filed without leave it was not properly on record and lacked standing. The application was struck out with costs at a lower scale as undefended.

Key legal issues

#
01

Joinder of a party whose title was cancelled by a judgment in a suit to which she was not a party

Holding

Joinder refused; the applicant acquired the parcel during the pendency of the suit, alienation pendente lite ran afoul of lis pendens, and the application was a device to delay execution.

Reasoning

The suit was filed in 2005 and the applicant was registered on May 7, 2010 during its pendency. Under Bellamy v Sabine as applied in Kenyan authority, alienation during pendency cannot defeat the plaintiff's claim and binds derivers of title even without notice. The judgment declared the defendant-derived titles, including parcel 1299, illegally acquired; adding the applicant would not enable better adjudication but merely delay execution.

p. 5
02

Whether the incoming advocate firm was properly on record after judgment

Holding

No; Order 9 rule 9 requires leave of court or consent for a change of advocate after judgment, and the firm filed without leave, so it had no standing to move the court.

Reasoning

Judgment having been rendered on June 20, 2018, Order 9 rule 9 applied. Counsel should have sought leave, filed and served notice of change before filing the application. Instead, over two years after judgment, the firm filed a certificate of urgency purporting to come on record. The requirement is mandatory and protects advocates from mischievous clients; non-compliance deprived the application of legal standing.

p. 7
03

Whether an unopposed application should automatically be allowed

Holding

No; the court must still interrogate an unopposed application on its merits.

Reasoning

Although the plaintiff filed no response to the second application, the court held that not all unopposed applications are allowed automatically, and proceeded to examine compliance with Order 9 rule 9, finding the mandatory procedure breached.

p. 6

Legal principles established

#
  • A party acquiring an interest in suit property during the pendency of litigation is bound by lis pendens irrespective of notice.
  • The procedure under Order 9 rule 9 for a new advocate to come on record after judgment is mandatory.

Court orders

#
  1. 1.The application dated June 2, 2020 by the intended interested party is dismissed with costs
  2. 2.The application by notice of motion dated October 28, 2021 filed by the firm of M/S Geofirey Kipngetich and Company Advocates is struck out with costs at a lower scale since it was undefended

Authorities

#

Legislation

  • Civil Procedure RulesOrder 22 rule 22; Order 45 rules 1, 2; Order 1 rule 10; Order 51 rule 1
  • Civil Procedure Actsections 3, 3A, 1A, 63(e), 95, 99
  • Constitution of Kenyaarticle 41 (as invoked by applicant); articles 50 and 159
  • Land Registration Actsections 25 and 26(1)
  • Indian Transfer of Property Act (repealed)section 52

Cases cited (11)

  • Ali Bin Khamis vs Salim Bin Khami Kirobe & others
    [1956] 1EA 195
  • James Kanyitta Nderitu & Another vs Maros Philotas Ghikas & another
    [2016] eKLR
  • Communications Commission of Kenya and 4 Others vs Royal Media Services Limited & 7 others
    [2014] eKLR
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another
    [2015] eKLR
  • Bellamy vs Sabine
    [1857] 1 De J 566
  • Bernadatte Wangare Muriu -vs- National Social Security Fund Board of Trustee & 2 Others
    [2012] eKLR
  • Fredrick Joses Kinyua & Another -vs- G.N. Baird
    Nairobi HCCC No. 4819 of 1989
  • Abdalla Omar Nabhan -vs- The Executor of the Estate of Saad Bin Abdalla Bin Abuod & Another
    Malindi HCCC No. 63 of 2013
  • S. K. Tarwadi vs Veronica Muehlmann
    [2019] eKLR
  • Lalji Bhimji Shangani Builders & Contractors –vs- City Council of Nairobi
    [2012] eKLR
  • Monica Moraa –vs- Kenindia Assurance Co. Ltd.
    [2010] eKLR
Jurisdiction invoked
Civil Procedure Act (sections 1A, 3A, 63(e), 95, 99) and Civil Procedure Rules (Orders 1, 9, 10, 22, 45, 51); articles 50 and 159 of the Constitution invoked by applicants

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Marisin v Siwon & 27 others; Kichapa (Intended Interested Party) (Environment & Land Case 69 of 2005) [2022] KEELC 3075 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3075/eng@2022-05-26

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