Samuel Thuo Mugure v Erastus Mungai Kiarie & 14 Others
The bottom line
#A Kenyan court cancelled land sold while under a court injunction, ruling buyers of disputed property get no protection.
What this practically means
#Executive summary
#Key legal issues
#Whether the defendants' statement of defence should be struck out
The defence was struck out as it raised no triable issues; the matters it raised had been determined in the ELC 954 of 2012 judgment and the failed set-aside application, and the issue of ownership was res judicata.
The court reviewed the pleadings and found the defence admitted the existence of the prior judgment and injunction. The question of ownership had been determined with finality in ELC 954 of 2012, whose judgment remained in force, not having been appealed, vacated or set aside. Raising the same issues offended Section 7 of the Civil Procedure Act on res judicata. Applying DT Dobie and Blue Sky, the defence was devoid of triable issues and judgment was entered as prayed in the plaint.
Whether the subdivision and transfers of the suit land during the pendency of ELC 954 of 2012 were valid
The subdivision of parcel 1511 and transfers to the defendants were illegal, null and void ab initio, being done in disobedience of the injunction of June 27, 2014 and under the doctrine of lis pendens.
The 1st defendant was aware of the suit and the injunction issued in the presence of his counsel, yet subdivided and registered the subdivisions in March 2019 during the pendency of ELC 954 of 2012, contrary to lis pendens. The doctrine persists via Section 3 of the Judicature Act and Section 107(1) of the Land Registration Act. Dispositions pendente lite are bound by the decree; the subdivision was therefore a nullity and the register was rectifiable under Section 80 of the Land Registration Act.
Whether the applicants in the July 18, 2022 application, claiming bona fide purchaser status, should be joined and allowed to defend
The application was dismissed because no valid interest was conveyed to the defendants, defeating any bona fide purchaser claim.
Having found the subdivisions and transfers null and void, the court held that no valid interest passed to the defendants. The suit land remained encumbered by the trust in favour of the plaintiff's and 1st defendant's families, so no bona fide purchaser for value without notice claim could be anchored. The applicants were left at liberty to pursue remedies against appropriate parties.
Legal principles established
#- Striking out a pleading is a drastic remedy, exercised only where the pleading is a complete sham, and without venturing into the merits
- A disposition of property in litigation pendente lite is bound by the judgment in the suit under the doctrine of lis pendens
- A defendant need only show a defence raising triable issues to resist strike-out
Court orders
#- 1.The application dated January 20, 2022 is allowed in its entirety
- 2.The 1st–14th defendants' statement of defence is struck out
- 3.Judgment is entered against the defendants as prayed in the plaint
- 4.Costs of the application and the suit to the plaintiff
- 5.The application dated July 18, 2022 is dismissed with costs to the plaintiff
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court; Civil Procedure Act and Rules (Order 2 Rule 15); Land Registration Act (Sections 80, 107(1))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Thuo Mugure v Erastus Mungai Kiarie & 14 Others", Case Analysis (2023). Not stated in judgment (ruling on applications dated January 20, 2022 and July 18, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17/eng@2023-01-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.