Nairobi City County v Mwangi & 2 others (Environment and Land Miscellaneous Application 75 of 2014) [2024] KEELC 4920 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a land transfer done while a court order blocked it, proving court orders must be respected.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant gave a plausible and cogent explanation warranting extension of time
The Applicant satisfied the Salat ingredients; the application was filed one day after lapse of the 60-day period and sufficient cause was demonstrated under Section 95 of the Civil Procedure Act.
The court found that the Applicant's advocate made frantic and concerted efforts to reach the Respondent's advocate to operationalize the escrow account, but the Respondent's counsel appeared intent on winding up time and pursuing execution. The application was filed within one day of the lapse of the 60-day timeline, showing promptitude. Applying the seven Salat principles, the court held the Applicant demonstrated sufficient cause and was entitled to the court's discretion under Section 95 of the Civil Procedure Act.
Whether the transfer of the suit property during pendency and subsisting inhibition was lawful
The transfer to Esther Nyambura Mwangi (now deceased) contravened the doctrine of lis pendens and the subsisting order of inhibition, and was unlawful.
The court held that the transfer and registration of the suit property during pending proceedings offended the doctrine of lis pendens as explained in Naftali Ruthi Kinyua, and further breached the order of inhibition registered against the title, which remained in existence and had not been varied or discharged. A party seeking to act contrary to an order must first revert to court to have it discharged. The Respondent's disregard of lawful court orders portended ill for the rule of law.
Whether the court has jurisdiction to avert a miscarriage of justice or abuse of due process
The court possesses inherent and intrinsic jurisdiction to remedy transactions undertaken in contravention of court orders, and exercised it by restoring the status quo ante.
Relying on Narok County Government v Livingstone Kunini Ntutu, the court held that it retains residual, inherent authority, in the absence of a specific remedy, to ensure observance of due process, prevent abuse of process and do justice between the parties. The court ought not be rendered powerless merely because a party acted to defeat pending proceedings and an order of inhibition. Restoration of the status quo ante was the appropriate remedy.
Legal principles established
#- Extension of time is an equitable remedy available to a deserving party at the discretion of the court, and the applicant bears the burden of explaining the delay to the satisfaction of the court.
- A transaction carried out in contravention of a subsisting court order that has not been discharged or varied is unlawful, and the court is seized of inherent jurisdiction to remedy the resulting illegality by restoring the status quo ante.
- The doctrine of lis pendens prohibits a party from giving third parties rights to property in dispute during pending litigation, and its applicability survives the repeal of section 52 of the ITPA through the saving provisions of section 107(1) of the Land Registration Act.
Court orders
#- 1.The timelines for depositing the security of Kshs 1,000,000/= in the Escrow account in the names of the advocates for the Applicant and the Respondent stipulated in the order of 14th March 2024 are extended.
- 2.The sum of Kshs 1,000,000/= shall be deposited in the Escrow account within 14 days from the date of the order.
- 3.The order of stay of execution pending the hearing and determination of the appeal and/or intended appeal to the Court of Appeal granted on 14th March 2024 is reinstated.
- 4.The orders of stay and their continuation are dependent upon the deposit of the security within 14 days.
- 5.The entries made over the suit property during the existence of the order of inhibition issued on 14th March 2024 are cancelled.
- 6.Entry number 12 effected on 23rd May 2024 is revoked.
- 7.The title of the suit property shall remain in the name of the Applicant subject to an inhibition being registered by the Land Registrar pending determination of the appeal.
- 8.In default of compliance with the deposit within the set timeline, the order of stay shall lapse and the inhibition in the order of 14th March 2024 shall stand discharged.
- 9.Costs of the application shall abide the outcome of the appeal.
- 10.Either party is at liberty to apply.
- Jurisdiction invoked
- Inherent jurisdiction of the court; Section 95 of the Civil Procedure Act, Chapter 21, Laws of Kenya
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nairobi City County v Mwangi & 2 others (Environment and Land Miscellaneous Application 75 of 2014) [2024] KEELC 4920 (KLR)", Case Analysis (2024). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4920/eng@2024-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.