Marisin v Siwon & 27 others; Kichapa (Intended Interested Party) (Environment & Land Case 69 of 2005) [2022] KEELC 3075 (KLR)
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
#Key legal issues
#Joinder of a party whose title was cancelled by a judgment in a suit to which she was not a party
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.
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.
Whether the incoming advocate firm was properly on record after judgment
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.
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.
Whether an unopposed application should automatically be allowed
No; the court must still interrogate an unopposed application on its merits.
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.
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.The application dated June 2, 2020 by the intended interested party is dismissed with costs
- 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
- 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.