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ELCDismissedNotice of Motion dated 19th December 2022 (suit number not stated in judgment)· [2024] KEELC 831 (KLR)

Gitari v Mati & 3 others (Environment & Land Case 740 of 2013) [2024] KEELC 831 (KLR)

Environment and Land Court
22 February 2024
4,743 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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If you buy land while a court case over it is ongoing in Kenya, the final judgment can cancel your title even without a registered injunction.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court by J. M. Mutungi, ELC Judge, delivered on 22nd February 2024, determines a Notice of Motion dated 19th December 2022 by Joseph Gachoki Gitari seeking review and setting aside of a judgment delivered on 22nd July 2022 by Justice E. Cherono, which had cancelled his title to parcel Kabare/Mikarara/726 and registered Peninah Muthoni Mati as proprietor. The Applicant, who bought the land in 2013 from Geoffrey Githinji Kimicha (a mid-suit purchaser from the 1st Defendant) and was never joined to the suit, argued he was denied a hearing and that registration of the plaintiff rather than the deceased's estate was an error apparent on the face of the record, invoking Order 45 Rule 1 of the Civil Procedure Rules and Section 80 of the Civil Procedure Act. The 1st Respondent opposed, asserting the purchase was pendente lite and the defendants' titles flowed from an illegal or corrupt scheme. The court, relying on Nyamweya J in Lilian Wairimu Ngatho, Mativo J in the Apollo Mboya case, and the lis pendens doctrine (Section 52 of the Indian Transfer of Property Act 1882, Bellamy v Sabine, Abdalla Omar Nabhan), held that a purchaser pendente lite takes at his own risk even absent a registered injunction; the judgment binds him; his remedy lies against the seller; the plaintiff sued as legal representative of the estate so no error was apparent; and issues decided at trial can only be challenged on appeal. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether non-joinder of the Applicant (a subsequent purchaser pendente lite) suffices as 'sufficient cause' for review

Holding

No; lis pendens renders the judgment binding on the applicant and his claim lies against the seller, not the plaintiff

Reasoning

The Applicant bought the suit property in 2013 while the suit filed in 2006 was pending. The seller (2nd Defendant) knew of the litigation but did not inform the court. Under the lis pendens doctrine, the judgment binds persons deriving title from parties during the pendency of the suit. The applicant's remedy lies against the 2nd Defendant who sold him the land.

p. 8
02

Whether registration of the 1st Respondent rather than the deceased's estate was an error apparent on the face of the record

Holding

No; she sued and held letters of administration as legal representative of the estate, so the contention was misconceived and in any event a matter for appeal

Reasoning

The plaintiff produced letters of administration issued on 16th August 2006 and sued as legal administrator of the estate of Thiaka Kamau. The locus standi issue was raised and decided at trial; dissatisfied parties should have appealed, not sought review, as review cannot be a vehicle for rehearing decided issues.

p. 8

Legal principles established

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  • A purchaser of property pendente lite takes at his own risk notwithstanding absence of a registered injunction; the final judgment binds him
  • An error apparent on the face of the record must be patent and not require elaborate argument or protracted reasoning

Court orders

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  1. 1.The Notice of Motion application dated 19th December 2022 is dismissed
  2. 2.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 80
  • Civil Procedure Act, Cap. 21 Laws of KenyaSection 2 (definition of legal representative)
  • Civil Procedure Act, Cap. 21 Laws of KenyaSections 1A and 1B
  • Civil Procedure RulesOrder 45 Rule 1
  • Indian Transfer of Property Act, 1882 (now repealed)Section 52

Cases cited (9)

  • Lilian Wairimu Ngatho & Another vs Moki Savings Co-operative Society Ltd & Another, Beatrice Njeri Gachukia & 19 other Interested Parties
    (2022) eKLR
  • Lilian Wairimu Ngatho & Another vs Moki Savings Co-operative Society Ltd
    (2014) eKLR
  • Carol Silcock v Kassim Sharrif Mohamed
    [2013] eKLR
  • Abdalla Omar Nabhan vs The Executor of the Estate of Saad Bin Abdalla Bin Abuod & Another
    (2013) eKLR
  • Manwji vs U.S. International University and Another
    (1976-80) KLR 229
  • Bellamy vs Sabine
    (1857) 1 De J 566, 584
  • Mradula Suresh Kantaria vs Surech Nanillal Kaptaria
    Civil Appeal Number 277 of 2005
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] eKLR
  • Julian Adoyo Ongunga v Francis Kiberenge Abano
    (2016) eKLR
Jurisdiction invoked
Sections 80 and 1A, 1B of the Civil Procedure Act, Cap. 21 and Order 45 Rule 1 of the Civil Procedure Rules (review jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gitari v Mati & 3 others (Environment & Land Case 740 of 2013) [2024] KEELC 831 (KLR)", Case Analysis (2024). Notice of Motion dated 19th December 2022 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/831/eng@2024-02-22

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