Khamisi (Suing as the Legal Representative of the Estate of Juma Omari Mwendo) v Juan & 5 others; Prime Bank Limited & 2 others (Intended Interested Party) (Environment and Land Case E006 of 2023) [2025] KEELC 5849 (KLR)
The bottom line
#A Kenyan court voided land transactions made while a case was ongoing and added new parties so the rightful owner can finally reclaim the property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the prayer for joinder of the 1st, 2nd and 3rd Intended Interested Parties as parties to this application for the purpose of the execution of the decree issued on 23rd September, 2024 should be granted
- 2.Whether the Honourable Court can issue orders on discharging a charge summarily without taking evidence and whether the charge registered by the Intended 2nd Interested Party as security in favour of the Intended 3rd Interested Party can be nullified
- 3.Whether the Applicant has made out a case for the amendment of the decree issued on 23rd September, 2024 by revoking the charge and discharge registered in favour of the Intended 1st Interested Party
- 4.Whether the sale of the suit property to the 2nd Respondent can be nullified and voided
- 5.Who will bear the costs of the Notice of Motion application dated 22nd October, 2024
Key legal issues
#Joinder of interested parties for execution of a decree
Joinder was granted; the intended interested parties were necessary parties whose presence was required to effect execution of the decree
The court applied Order 1 Rule 10(2) and Order 22 Rule 7 of the Civil Procedure Rules, relying on Joseph Njau Kingori and Civicon Limited. The green card showed discharge, transfer and charge transactions over the suit property conducted while the suit was pending, and the Land Registrar had indicated the decree could not be implemented without joining the affected parties. Sufficient interest was demonstrated, and no contention was raised against the application, which was unopposed.
Whether a charge can be summarily discharged or nullified without taking evidence
Generally no; due process requires pleadings, service and evidence, subject to rare exceptions such as fraud, illegality or statutory violation, but here the charge had already been declared void in the main judgment
The court held that charges are statutory interests under the Land Act and Land Registration Act and that courts cannot bypass statutory procedure summarily. Exceptions include charges void ab initio for fraud or illegality apparent on the documents. Relying on Moses Kariuki Wachira, the court found the judgment debtor had no capacity to charge property already held to belong to the applicant's grandfather, and that the 17th September 2024 judgment had already declared the charge irregular, null and void.
Amendment of the decree under the slip rule
The decree of 23rd September 2024 was amendable to reflect revocation of the charge and discharge registered in favour of the 1st Interested Party
The court examined Sections 99 and 100 of the Civil Procedure Act and authorities including Vallabhdas Karsandas Kaniga, Nguruman Limited and Fredrick Otieno Outa. The slip rule allows correction to give effect to the court's intention without amounting to a review or appeal over the judgment. Since the main judgment had voided the charge, amending the decree to reflect revocation of the charge and discharge was in order with procedural laws.
Nullification of the sale of the suit property to the 2nd Respondent
The sale effected on 24th May 2023, while interim injunction orders were in place, was illegal, null and void, and was voided
The suit had been instituted on 27th January 2023 and interim temporary injunction orders were in force; the sale in May 2023 occurred during the pendency of the suit and was therefore captured by lis pendens. The judgment of 17th September 2024 had declared the title null and void and directed re-registration in the name of the rightful owner. The court accordingly discerned that the sale to the 2nd Defendant was null and void.
Costs
Although costs follow the event under Section 27(1) of the Civil Procedure Act, the court elected to make no order as to costs
The court affirmed the principle that costs follow the event, citing Harun Mutwiri, KUCFAW v Bidco and Hussein Muhumed Sirat. Despite the applicant succeeding substantially, the court exercised its discretion not to award any costs, without stating compelling reasons for departing from the general rule.
Legal principles established
#- Transactions registered over suit property while litigation is pending are captured by the doctrine of lis pendens and are voidable
- A court may add a party at any stage of the proceedings where the party is necessary for the court to effectually and completely adjudicate on the matters in dispute
- Summary nullification of a registered charge without evidence is impermissible save in limited exceptions such as fraud or illegality apparent on the face of the documents
- A charge by a person without capacity over property belonging to another is illegal, null and void, with the chargee's remedy lying in debt or restitution
- The slip rule under Sections 99 and 100 of the Civil Procedure Act does not permit a court to sit on appeal over its own judgment or substantially alter it
Court orders
#- 1.That the Notice of Motion application dated 22nd October, 2024 be and is hereby found to have merit partially allowed, some of the orders sought having already been dealt with in the Judgment
- 2.Leave granted for joinder of the Intended 1st, 2nd and 3rd Interested Parties as parties to the application for the purpose of executing the decree issued on 23rd September, 2024
- 3.A declaration that the discharge of the charge with the 1st Interested Party, the sale and transfer of the suit property to the 2nd Interested Party and the charging of the suit property with the 3rd Interested Party was unlawful and remains voidable since 17th September, 2024
- 4.An order amending the decree issued on 23rd September, 2024 to reflect the revocation of the charge and discharge registered in favour of the 1st Interested Party
- 5.A declaration that the sale of the suit property by the 2nd Respondent to the 2nd Interested Party is null and void, as is the subsequent charge registered in favour of the 3rd Interested Party over Kwale/Msambweni 'A'/2185
- 6.The orders issued in the application deemed as a further decree of the court running concurrently with the decree issued on 23rd September, 2024
- 7.That there shall be no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act (Cap. 21); Order 1 Rule 10(2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 99 and 100 of the Civil Procedure Act; Articles 40(6) and 159(2) of the Constitution of Kenya, 2010
Relief refused
#Summary discharge/nullification of the charge without evidence in so far as already covered by the judgment of 17th September, 2024
The judgment of 17th September 2024 had already declared the charge null and void, and repeating the order would offend the doctrine of res judicata
Costs of the application
The court elected not to award any costs
Costs
There shall be no orders as to costs.
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.
That the Notice of Motion application dated 22nd October, 2024 be and is hereby found to have merit partially allowed taking that some of the orders sought in it had already been dealt with in the Judgment and examination of the same would amount to the court ofiending the doctrine of res judicata.
That this Honourable Court do and is hereby grants leave for joinder of the Intended 1st, 2nd and 3rd Interested Parties as parties to this application for the purpose of the execution of the decree of the court issued on the 23rd September, 2024.
That a declaration do and is hereby issued that the sale of the suit property by the 2nd Respondent to the 2nd Interested party be and is hereby declared null and void
That there shall be no orders as to costs.
That an order be and is hereby issued amending the decree issued on 23rd September, 2024 to refiect the revocation the charge and discharge registered in favour of the 1st Intended Party.
The transactions which include discharge of the charge by the Intended 1st Interested Party. Transfer of the property in favour of the Intended 2nd Interested Party and the Charge in favour of the Intended 3rd Interested Party are all lis pendens.
Issues in the judgment
#Conflicting delivery dates: the substantive text states the ruling was rendered on 2nd July, 2025, while the signature block and the date of judgment state 2nd June 2025
Internal inconsistency on which Intended Interested Party purchased the suit property: earlier passages attribute the sale to the Intended 2nd Interested Party, one passage attributes it to the 3rd Interested Party
Issue heading (d) states 'sale of the suit property to the 2nd Respondent' whereas the relief and disposition concern the sale by the 2nd Respondent to the 2nd Interested Party
The closing disposition is dated at variance with paragraph 5, and the application was determined without the benefit of the parties' submissions which the court could not access
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Khamisi (Suing as the Legal Representative of the Estate of Juma Omari Mwendo) v Juan & 5 others; Prime Bank Limited & 2 others (Intended Interested Party) (Environment and Land Case E006 of 2023) [2025] KEELC 5849 (KLR)", Case Analysis (2025). Notice of Motion application dated 22nd October, 2024 (arising from suit on land parcel Kwale/Msambweni 'A'/2185). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5849/eng@2025-06-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.