Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedCivil Appeal E051 of 2025 (Application dated 5th October 2023)

Cove Investments Limited v Rono & 2 others (Civil Appeal (Application) E051 of 2025) [2025] KECA 1089 (KLR)

Court of Appeal
20 June 2025
JMJ. MativoMGM. GachokaGOG. V. Odunga
7,852 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

#

The Court of Appeal struck out an appeal because the appellants secretly sold the disputed land while the case was ongoing — losing their right to continue litigating.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nakuru (Mativo, Gachoka and Odunga, JJA) on an application dated 5th October 2023 by Cove Investments Limited, the 1st respondent in appeal E051 of 2025, seeking to strike out the appeal brought by Johana Kiprotich Rono and Joseph Rono Langat, personal representatives of the late Mathias Kimnyole Langat. The underlying dispute concerned land known as L.R. No. Nakuru/Ol'ongai Phase 11/34 sold to the applicant by the deceased in 1999 for Kshs. 16,758,425.50. The ELC at Nakuru (Ohungo, J.) by judgment of 18th May 2021 held that a constructive trust and proprietary estoppel arose, declared the respondents held the land in trust for the applicant, and extended time for obtaining Land Control Board consent. The respondents appealed. The applicant's application asserted that the respondents had secretly transferred the suit property to Royal Sian Limited during the pendency of the ELC proceedings, in breach of the doctrine of lis pendens and of subserving status quo orders, and had therefore lost interest in the appeal. The Court held that the application was properly brought under Rule 1(2) of the Court of Appeal Rules, 2022 and did not offend the proviso to Rule 86; that the transfer of the suit property pendente lite and in breach of court orders constituted an abuse of court process; that by parting with the property the appellants constructively abandoned the appeal and their cause of action and lost standing; and that the appeal was rendered moot. The Court struck out the appeal with costs to the applicant. The Attorney General, though served, did not participate.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application offends the proviso to Rule 86 of the Court of Appeal Rules, 2022
  2. 2.Whether disposing of a suit property pendente lite constitutes an abuse of court process
  3. 3.Whether by disposing of the subject matter of the appeal, the 1st and 2nd respondents lost interest in the appeal, i.e. technically abandoned it
  4. 4.Whether the cause of action has ceased to exist as urged by the applicant

Key legal issues

#
01

Whether the application to strike out the appeal offends Rule 86 of the Court of Appeal Rules, 2022

Holding

The application was properly brought under Rule 1(2) invoking the Court's inherent jurisdiction, which Rule 86 does not divest; it does not offend the proviso to Rule 86.

Reasoning

The Court held that inherent jurisdiction is intrinsic in a Superior Court as its lifeblood, and neither the Appellate Jurisdiction Act nor the Court of Appeal Rules divest the Court of that power in deserving cases. Because the question whether a property was transferred pendente lite is a pure point of law touching the maintainability of the appeal, it is a matter the Court may entertain in the exercise of its inherent jurisdiction, notwithstanding the 30-day limit in Rule 86.

p. 7
02

Whether transferring the suit property pendente lite is an abuse of court process

Holding

Yes. The appellants transferred the property during the pendency of litigation and in breach of court orders, which constitutes an abuse of process justifying striking out the appeal.

Reasoning

The Court traced the doctrine of lis pendens from Bellamy v Sabine through Section 52 of the repealed Transfer of Property Act to its continued application in Kenya via the Judicature Act. Although pendente lite transfers are not void but bind the transferee to the outcome, a party who secretly sells the subject property and continues to litigate on the false premise of ownership abuses the judicial process, as such conduct is calculated to use the court's process for an improper purpose.

p. 9
03

Whether the appellants abandoned the appeal and lost their cause of action by transferring the property

Holding

Yes. By parting with the property, the appellants constructively abandoned the appeal and their cause of action, and lost standing in the appeal.

Reasoning

A cause of action is the pivot of a suit; a litigant must have an interest in the matter. Where an appellant relinquishes the cause of action, any relief in the appeal would be of no utilitarian value, rendering the appeal moot. The Court found that the appellants' interest ceased on transfer, that they lacked standing, and that the pursuit of the appeal may only be for its nuisance value, warranting striking out.

p. 13

Legal principles established

#
  • The doctrine of lis pendens remains applicable in Kenya through Section 3(2)(c) of the Judicature Act and is preserved by Section 106 of the Land Registration Act notwithstanding the repeal of the Transfer of Property Act.
  • A transfer of suit property pendente lite without the permission of the court, though not void, binds the transferee to the outcome of the suit, and a litigant who secretly transfers the subject property during litigation and continues litigating commits an abuse of court process which may ground striking out the appeal.
  • Where an appellant transfers the subject matter of an appeal, the appellant loses standing, the cause of action ceases to exist, and the appeal may be dismissed or struck out as moot.
  • The Court of Appeal's Rule 86 time limitation does not oust the Court's inherent jurisdiction under Rule 1(2) to entertain an application to strike out an appeal for abuse of process.

Court orders

#
  1. 1.The appeal is struck out with costs to the applicant

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

JM
majority
MG
majority
GO
majority
On appeal from
Environment and Land Court, Nakuru
Constitutional Petition No. 360 of 2017
Jurisdiction invoked
Inherent jurisdiction under Rule 1(2) of the Court of Appeal Rules, 2022, and sections 3A and 3B of the Appellate Jurisdiction Act

Quotable passages

#

Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, for the reasons herein above stated, we hereby strike out this appeal with costs to the applicant.
p. 13Final orders - striking out of appeal
the doctrine of lis pendens has been defined as the jurisdiction, power, or control which a court acquires over property involved in a suit pending the continuance of the action, and until final judgment therein.
p. 7Definition of lis pendens
The doctrine of lis pendens under section 52 of TPA is a substantive law of general application. Apart from being in the statute, it is a doctrine equally recognized by common law.
p. 8Status of lis pendens in Kenya (Mawji vs US International University)
It follows that if an appellant relinquishes the cause of action, as happened in this case, the court will be perfectly entitled to dismiss the suit.
p. 12Cause of action and abandonment
an appeal is a remedy sought to address a grievance, and if that grievance no longer exists, the appeal loses its purpose
p. 12Mootness of appeal

Issues in the judgment

#
minor

The coram lists the judges only by names and the title 'JUDGE OF APPEAL' without identifying which judge authored the judgment; authorship is recorded as unknown.

minor

The judgment inconsistently renders the Bellamy v Sabine citation, once as [157] 1 De G & J 566 and once (in the quoted extract) as [1857] 1 De J 566.

minor

The judgment states in paragraph 30 that it will proceed to three questions but the enumerated discussion and conclusions (paragraphs 55-56) list seven findings.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Cove Investments Limited v Rono & 2 others (Civil Appeal (Application) E051 of 2025) [2025] KECA 1089 (KLR)", Case Analysis (2025). Civil Appeal E051 of 2025 (Application dated 5th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1089/eng@2025-06-20

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