Jumba & another v Metto & 2 others
The bottom line
#Kenya's Environment and Land Court cancelled titles created by selling land while a case was ongoing, but refused to punish the buyers for contempt of a different case's order.
What this practically means
#Executive summary
#Key legal issues
#Contempt of court
Contempt declined despite apparent disobedience, because the order breached was issued in Kitale SPMCC No. 150 of 1995, a matter not before this Court
The court accepted the four-element test for contempt and acknowledged the Respondents subdivided the suit land rather than comply with the 1996 decree. However, it held that punishing contempt of an order made in another matter would raise a jurisdictional issue and amount to interfering with the power and discretion of the court that issued the order, even one of the same status. Prayer (c) was therefore declined.
Lis pendens and cancellation of titles
Subdivision and transfer of the suit parcel during pendency of the suit offended lis pendens; the resultant titles were cancelled and the original title restored
The court traced the doctrine from Bellamy v Sabine through section 52 of the Indian Transfer of Property Act to its continued application via section 107(1) of the Land Registration Act and section 3(1) of the Judicature Act. Finding the subdivision was done with intent to defeat or obstruct the suit, it cancelled the five resultant titles, restored the original parcel, and issued an inhibition under section 3A of the Civil Procedure Act to preserve the property pending trial.
Revival of the suit and Counterclaim
The suit, including the Counterclaim, was validly revived by consent in the application dated 11/03/2019, defeating the abatement objection
The Respondents argued the suit had abated on 06/04/2010 upon the Defendant's death and could not be revived. The court noted that by a consent recorded on 24/03/2022 the Plaintiffs did not oppose revival of the Counterclaim and substitution of the deceased's legal representatives. Having been allowed by consent, it was illogical to argue there was no suit to revive.
Excision of 0.8 acres per the 1996 decree
Refused at interlocutory stage as it would conclude the Counterclaim without evidence
The court held that the excision of 0.8 acres is the nerve centre of the Defendant's Counterclaim against the Plaintiffs. Granting it on the application would amount to concluding the Counterclaim without evidence being tendered, so the prayer was declined and left for the hearing of the main suit.
Legal principles established
#- Four elements must be proved for a contempt finding: a valid order, service or knowledge of it, action contrary to it, and deliberateness
- A court cannot punish contempt of an order issued in a matter not before it, as that raises jurisdictional issues and interferes with the issuing court's discretion
- Alienation of suit property during the pendency of litigation offends the doctrine of lis pendens and justifies cancellation of resulting titles
Court orders
#- 1.Prayer (d) granted: cancellation of the survey of land parcel No. Waitaluk/Mabonde Block 7/Koiyo/9 and the resultant subdivisions 283, 284, 285, 286 and 287, and restoration of the title to Waitaluk/Mabonde Block 7/Koiyo/9
- 2.An order of inhibition to be registered on the restored title pending the hearing and determination of the suit
- 3.Applicants awarded the costs of the Application
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act and Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules; Section 29 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jumba & another v Metto & 2 others", Case Analysis (2023). Environment & Land Case 30 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15957/eng@2023-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.