Njoroge v Njoroge; Waweru (Interested Party) (Environment & Land Case 779 of 2017) [2024] KEELC 5645 (KLR)
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
#Key legal issues
#Whether the Interested Party was competently before the Court
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.
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.
Whether the transfer of the suit land to the Interested Party was caught by the doctrine of lis pendens
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.
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.
Whether court orders should be rendered ineffectual
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.
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.
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.The Application dated 5/7/2023 be and is hereby allowed with costs to be borne by the Defendant and Interested Party.
- 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.
- 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.