Cove Investments Limited v Johana Kiprotich Rono & Joseph Rono Langat as the Representatives of the Estate of Mathias Kimnyole Langat & 5 others (Constitutional Petition 360 of 2017) [2024] KEELC 6730 (KLR)

Under Order 1 Rule 10(2) and the Bellevue and Carol Silcock authorities, joinder after judgment is permissible in execution proceedings and in representative capacity. The purchasers acquired the suit property during the pendency of the case, and allowing the judgment-debtor to defeat execution by transferring the property would subvert the course of justice. The court therefore allowed the joinder to enable effectual execution of the decree.

Relying on the Mulla definition and Ishan Chunder v Beni Madhub, a 'representative' includes a transferee of the judgment-debtor's interest, who is bound by the decree. The 1st respondent transferred its interest in the land while the suit was pending, in breach of a status quo order, so the responsibilities of the decree passed to the transferees and must be satisfied in execution.

Following Mawji v US International University, lis pendens is a substantive law of general application prohibiting parties from giving third parties rights to property in dispute pending litigation. The transfer of the suit property during the pendency of the suit and in defiance of a status quo order was designed to circumvent the court's jurisdiction; it is therefore illegal and cannot defeat execution.

The court adopted the holding in Absolom Opini Mekenye v James Obegi that a party who has invoked the execution of decree process under Order 22 cannot simultaneously invoke contempt proceedings under the Contempt of Court Act. Since the applicant had already started execution, and the alleged contempt was not on the face of the court, the contempt and consequential punitive damages prayers failed.