Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment extract· [2024] KEELC 5645 (KLR)

Njoroge v Njoroge; Waweru (Interested Party) (Environment & Land Case 779 of 2017) [2024] KEELC 5645 (KLR)

Environment and Land Court
30 July 2024
3,378 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

#

A Kenyan court cancelled a land transfer made while a lawsuit was pending, ruling it conveyed no rights to the buyer.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Thika (J G Kemei, J) determines the Plaintiff's Notice of Motion dated 5/7/2023 seeking execution of a judgment delivered on 15/6/2020, in which the Court had declared parcel Muguga/Kahuho/408 family land held on trust, cancelled the Defendant's title and directed sharing among family members. The Plaintiff discovered that during the pendency of the suit the Defendant had transferred the land to his wife, Josephine Njeri Waweru, who was joined as an Interested Party in the execution application and opposed it, contending she was a bona fide purchaser for value and that the land had been gifted to the Defendant inter vivos in 1976, invoking Dina Management Ltd and Article 50(1). The Defendant did not oppose the application. The Court framed four issues: competent joinder of the Interested Party, the doctrine of lis pendens, opposition to the application, and costs. It held that no leave had been sought or obtained to enjoin the Interested Party, and that in any event the Court was functus officio regarding the concluded suit and could not entertain a new cause of action. On lis pendens, applying Section 52 ITPA jurisprudence and authorities including Mawji v US International University and Abdalla Omar Nabhan, the Court found the transfer of 21/2/2020 was a scheme to defeat the judgment, conveyed no interest, and ordered cancellation of the registration under Section 80 of the Land Registration Act. The application was allowed with costs to the Defendant and Interested Party.

Key legal issues

#
01

Whether the Interested Party was competently before the Court

Holding

The Interested Party was not competently enjoined as no leave was sought or obtained; even if joined, she sought to introduce a new cause of action in a suit already determined, and the Court is functus officio.

Reasoning

The Court perused the record and found no instance where the Applicant or Interested Party sought and obtained leave to be enjoined. Order 1 rule 9 permits the Court to deal with the matter as regards parties actually before it. The rights of the parties had been determined by the judgment of 15/6/2020 which had not been set aside or appealed, so the Court could not entertain a new cause of action.

p. 3
02

Whether the transfer of the suit land to the Interested Party was caught by the doctrine of lis pendens

Holding

Yes. The transfer of 21/2/2020, made while the suit was pending and four months before judgment, was a scheme to defeat the court's judgment; no interest passed to the Interested Party and the entry is liable to cancellation under Section 80 of the Land Registration Act.

Reasoning

Relying on Section 52 ITPA jurisprudence and authorities including Mawji v US International University and Abdalla Omar Nabhan, the Court held that every purchaser of property in litigation is presumed to have notice and is bound by the decree. The transfer was a clear scheme to defeat the judgment, and leaving it standing would be a mockery of justice.

p. 6
03

Whether court orders should be rendered ineffectual

Holding

Court orders are not made in vain; the Court invoked its inherent powers under Section 3A of the Civil Procedure Act to make orders necessary for the ends of justice and to prevent abuse of process.

Reasoning

The Court cited Ojwang J in B v Attorney General and the Canadian case of Canadian Metal Company Ltd v Canadian Broadcasting Corporation for the principle that allowing court orders to be ignored would bring the administration of justice into scorn and lead parties to take the law into their own hands.

p. 6

Legal principles established

#
  • A transfer of suit property made during the pendency of a suit is caught by the doctrine of lis pendens and conveys no interest; the final judgment binds the third-party transferee as though the transfer never took place.
  • A party seeking to be enjoined to a suit must obtain leave of the Court; and a party cannot introduce a new cause of action in a suit already determined, the Court having become functus officio.

Court orders

#
  1. 1.The Application dated 5/7/2023 be and is hereby allowed with costs to be borne by the Defendant and Interested Party.
  2. 2.Cancellation of the entry registering the Interested Party as proprietor of Title Number Muguga/Kahuho/408 pursuant to Section 80 of the Land Registration Act, to pave way for execution of the Judgment delivered on 15/6/2020.

Authorities

#

Legislation

  • Land Registration ActSection 80
  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 1 rules 9, 10 and 11
  • Indian Transfer of Property Act 1882Section 52
  • Constitution of KenyaArticle 50(1)
  • Registration of Titles ActSection 23

Cases cited (10)

  • Super Nova Properties Limited & Another v District Land Registrar Mombasa & 2 Others; Kenya Anti-Corruption & 2 Others (Interested Parties)
    [2018] eKLR
  • Dina Management Ltd v County Government of Mombasa
    [2021] eKLR
  • Ruthi Kinyua v Patrick Thuita Gachure & Another
    [2015] eKLR
  • Bellamy v Sabine
    [1857] 1 De J 566
  • Mawji v US International University & Another
    [1976] KLR 185
  • Bernadette Wangare Muriu v National Social Security Fund Board of Trustees & 2 Others
    [2012] eKLR
  • Cieni Plains Company Limited & 2 others v Ecobank Kenya Limited
    [2017] eKLR
  • Abdalla Omar Nabhan
  • B v Attorney General
    [2004] 1 KLR 431
  • Canadian Metal Company Ltd v Canadian Broadcasting Corporation
    [1975] 48 Dlr
Jurisdiction invoked
Section 80 of the Land Registration Act; Section 3A of the Civil Procedure Act; Order 1 rule 9 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Njoroge v Njoroge; Waweru (Interested Party) (Environment & Land Case 779 of 2017) [2024] KEELC 5645 (KLR)", Case Analysis (2024). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5645/eng@2024-07-30

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