The reaffirmation of the lis pendens doctrine in Kenya: The Case of Akoth & Another v Oloo & 2 Others [2023] KEELC 20867 (KLR)

Citation: Akoth & Another v Oloo & 2 Others, Environment & Land Appeal E073 of 2021[2023] KEELC 20867 (KLR)

Brief Background:

• The appellants filed suit in 2014 seeking ownership rights over a parcel of land.
• While the suit was pending, the respondents sold and transferred the land to third parties.
• The trial court dismissed the case, citing lack of proprietary interest.
• The appellants appealed, invoking the doctrine of lis pendens, arguing that the transfer should be nullified as it occurred during litigation.

Legal Issue for determination: 

• Whether a property transfer made while a suit affecting that property is pending violates the doctrine of lis pendens.

Court’s Reasoning

The Environment and Land Court, on appeal, overturned the trial court's decision, holding that:

• Lis Pendens is part of Kenyan law
• Though Section 52 of the Indian Transfer of Property Act (which codified lis pendens) was repealed, the doctrine survives via common law and equity, as recognized under Section 3(1) of the Judicature Act.
• Protection of Litigation Rights
• The doctrine is intended to preserve the subject matter of litigation. The property must remain unchanged to ensure the court’s decision is not rendered ineffectual.
• Binding on Third Parties
• Even purchasers without notice of the pending case are bound. The transfer does not confer clean title—it is subject to the outcome of the case.
• Case Law Cited
• The court relied on local precedents like:
• Bernadette Wangare Muriu v National Social Security Fund Board of Trustees [2012] eKLR
• Gichuki v Gichuki [1982] KLR 285

Court's Determination: 

1. The appeal was allowed.
2. The court declared the transfer null and void, confirming that the respondents could not pass good title during pending litigation.
3. The case was remitted to the lower court for retrial.

🧠 Commentary

✅ Strengths

• Reaffirmed continuing application of equitable doctrines despite statutory repeal.
• Emphasized public policy interest in ensuring litigation is not frustrated.
• Protected litigants from procedural exploitation, particularly when delays in court resolution are common in Kenya.

⚠️ Cautionary Notes

• The ruling places a heavy burden on purchasers to conduct due diligence—not only by checking the land register but also court registries.
• There is risk of abuse where plaintiffs use lis pendens tactically to stall legitimate sales—highlighting the need for judicial discretion.

📌 Key Takeaways

Point	Explanation
Lis pendens applies automatically	Once litigation is filed and actively pursued, no transfer can override its outcome.
Purchasers buy at their own risk	Even if they’re unaware of pending litigation, they are still bound by it.
Doctrinal resilience	Lis pendens continues to shape land law in Kenya through equity and case law, despite repeal of TPA provisions.

Conclusion

• The Akoth case is a landmark reaffirmation of the lis pendens doctrine in Kenya. 
• It balances protection of litigants' rights with the need for transactional certainty, while reminding all parties involved in land transactions of the crucial importance of due diligence and judicial restraint.