Kamau v Mandal & 3 others (Environment and Land Case E009 of 2021) [2026] KEELC 3293 (KLR) (2 June 2026) (Ruling)

Kamau v Mandal & 3 others (Environment and Land Case E009 of 2021) [2026] KEELC 3293 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEELC 3293 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Case E009 of 2021 AY Koross, J June 2, 2026 Between Pina Waithera Kamau Plaintiff and Shmina Mandal 1st Defendant Shandel Mandal 2nd Defendant and Daniel Ngumbau Muia 1st Intended Defendant Lands Registry 2nd Intended Defendant Ruling 1.This is a ruling on a notice of motion dated 6 October 2025, filed by the defendants against the plaintiff, and expressed to be brought under Order 1 Rule 10, Order 40 Rule 1 & 2, Order 45 Rule 1, Order 51 Rule 1 of the Civil Procedure Rules, Sections 1A, 1B & 3A of the Civil Procedure Act, Sections 26, 79 & 80 of the Land Registration Act, and Articles 40, 47 & 50 of the Constitution and all other enabling provisions of the law. They seek the following orders from this court:a.Spent.b.Spent.c.That pending the hearing and determination of this application and subsequently this suit, this honourable court be pleased to issue an inhibition order and direct the Land Registrar, Central Land Registry to within fourteen (14) days of service of this order to enter an administrative restriction as provided for under the provisions of Sections 68, 69 and 76 of the Land Registration Act restricting any and all dealings, registrations, transfers, charges, leases, subdivisions, or alterations in respect of all those parcels of land known as L.R. No. 12715/1223 and L.R. No. 12715/1224, both situated in the Northwest of Mavoko Municipality in Machakos District.d.That pending the hearing and determination of this application and subsequently this suit, that this honourable court be pleased to direct and compel the said land registrar to supply to the plaintiff or her duly appointed advocates within 14, certified true copies of all instruments, documents, consents, correspondence, and entries in the parcel files relating to the purported transfer of L.R. No. 12715/1223 from the plaintiff, Pina Waithera Kamau, to the 3rd intended defendant, Daniel Ngumbau Muia, including but not limited to: the transfer forms and any accompanying applications or consents; the consent to transfer issued by the relevant Land Control Board; The original title document and any subsequent application for registration of the transfer and associated instruments; identification documents (including national identity cards, PIN certificates, and passport photographs) used to effect the said transfer; and any correspondence, internal memos, or notations recorded on the parcel file concerning the said property;e.That pending the hearing and determination of this application, and subsequently the suit, an interim injunction be issued restraining the intended 3rd defendant, whether by himself, his servants, agents, employees, assigns, or any other person acting on his behalf or under his authority, from entering upon, taking possession of, constructing on, developing, fencing, alienating, transferring, selling, leasing, charging, wasting, or in any other manner whatsoever interfering with all that parcel of land known as L.R. No. 12715/1223 situated in the north-west of Mavoko Municipality in Machakos District.f.Spent.g.That the honourable court be pleased to join DAniel Ngumbau Muia as a 3rd defendant to these proceedings.h.That the honourable court be pleased to join the Land Registrar, Central Lands Registry, as the 4th defendant.i.That this honourable court be pleased to declare that all transactions, entries, and dealings in respect of L.R No. 12715/1223 measuring 0.1000 in favour of Daniel Ngumbau Muia as null and void ab initio, having been effected in violation of the court's ruling and orders made on 9 November 2022.j.That pending the hearing and determination of the application and suit herein, this honourable Court be pleased to issue interim measures of protection to restrain the plaintiff Pina Waithera Kamau, Daniel Ngumbau Muia, Land Registrar, Central Lands Registry, from transferring, alienating and or in any manner whatsoever dealing with the residual interest after effecting transfer of L.R. Nos. 12715/1223.k.That the costs of this application be provided for and be borne by Pina Waithera Kamau.l.That this Honourable Court be pleased to issue such further or other orders as may be just and expedient in the interest of justice. 2.The motion is supported by grounds on the face thereof and by the supporting affidavit of the 1st defendant, deposed on 6 October 2025. In a nutshell, she avers that upon learning of the matter and the ex parte judgment rendered on 18 November 2021, the defendants instructed their advocates to set aside the ex parte Judgment by filing an application dated 18th January 2022. 3.On 22 February 2022, the court issued directions regarding the application and ordered a stay of execution of the ex parte judgment entered against the defendants, including the decree and all consequential proceedings. On 9 November 2022, the court delivered its ruling setting aside the ex parte judgment, the decree, and all consequential proceedings. An official search of the land registry later revealed that, despite the court having set aside the ex parte judgment on 9 November 2022, the plaintiff, on 5 September 2023, fraudulently and without any legal justification, transferred the suit property, L.R 12715/1223, to the 3rd intended defendant for a consideration of Kshs. 2,500,000. 4.The defendants maintain that the transfer and registration of L.R 12715/1223 to the 3rd intended defendant was void ab initio, as it was effected after the court had already set aside the ex parte judgment that had irregularly vested the suit property in the plaintiff. They argue that unless urgent conservatory orders are issued and relevant documentation is provided, they would be deprived of their constitutional and statutory property rights and suffer irreparable harm. Further, it would be in the interest of justice for all parties to be joined in order to effectually and completely resolve all issues before this honourable court, to bind all parties who may have registered claims or benefits in respect of the impugned transactions, to ensure restoration of the land register, and to secure the status quo. She presented several documents that allegedly substantiated their claims. 5.The plaintiff, via her replying affidavit sworn on 26 January 2026, sworn on 26 January opposed the motion. She succinctly informs the court that the transfer was effected at the Lands Department prior to the issuance of any court orders. She had already applied for the transfer and obtained a provisional certificate of title in her favour, as there were no injunctive orders restraining her. Additionally, at the time the orders for setting aside were issued, she had already acquired ownership of the two subject properties, which had been registered in her favour at the Lands Department. 6.Moreover, she had not been personally served with any court orders; therefore, no fraudulent action or improper exercise occurred. The 3rd intended defendant was not a party to this suit from its commencement and should be removed from these proceedings in the absence of any application for leave of court to be incorporated as a party. The supporting affidavit should be struck out as defective because the deponent resides in a foreign country, swore the document without notarization, and contravened procedure. 7.In rejoinder, the 1st defendant filed a supplementary affidavit she swore on 25 March 2026, where, in brief, she avers that some of the issues raised concerning her supporting affidavit were technical and reiterated her earlier sentiments. She states that the plaintiff’s claim of having applied for and obtained a provisional certificate of title prior to the setting aside is irrelevant and does not remedy the illegal actions. The plaintiff’s assertion that no injunctive order was registered at the lands office is immaterial and does not validate the impugned transfer. The setting aside of the judgment on 9th November 2022 automatically invalidated the plaintiff’s derivative title, and the failure to register the court’s order does not legitimise subsequent dealings. Further, the court, at any stage of the proceedings and either upon or without formal application, may add any person whose presence is necessary to enable the effectual and complete adjudication and settlement of all questions involved in the suit. Lastly, at the time of swearing the said supporting affidavit, she and her co-defendant were physically present in Kenya, and the commissioning was lawfully undertaken within the jurisdiction. 8.Upon the court's directions, the motion was argued through written submissions dated 25 March 2026, filed by M/s. Andrew & Steve Advocates for the defendants. It framed three issues for determination: i) whether the defendants have established grounds for joinder of the 3rd and 4th intended defendants; b) whether the defendants have satisfied the threshold for the grant of the injunctive orders sought; and c) who should bear the costs of this application. 9.As for the plaintiff, her law firm on record, M/s. N. Mwaura & Co. Advocates, filed written submissions dated 2 April 2026, which framed the following four issues for determination: i) whether the supporting affidavit to the application is valid and should be deemed properly filed under the law and procedure? ii) whether the court should order the land registrar to produce documents? iii) whether the court should grant an order for substituted service upon the alleged 3rd intended defendant? and, lastly, iv) whether the court should allow joinder of the intended defendants in the matter? 10.Accordingly, having considered the motion, grounds, affidavits and the rival submissions together with the provisions of law, and the judicial precedents, this court considers that the following succinct issues shall adequately dispose of the application: a) Whether some of the orders are available to the defendants; b) whether the defendants’ supporting affidavit is competent; c) whether the plaintiff’s actions violated the doctrine of lis pendens and what orders should this court issue. We will address these issues sequentially.a.Whether some of the orders are available to the defendants 11.In the motion, the defendants have sought several reliefs from this court, but have not addressed some of them in their submissions, and it is evident that they have abandoned them. Having considered the court record and the nature of the orders sought, this court finds that prayers (c), (d), (e), and (j) are not available to the defendants for the following reasons. Foremost, prayers (c) and (d) fall within the administrative mandate of other government bodies as contemplated by the law. 12.Regarding the prayer (c), Part IV of the Land Registration provides an elaborate procedure for registering inhibitions, restrictions and cautions, which the defendants have failed to exercise and seek for this court to usurp the role of the land officers, which is not allowable. As held in Republic v Public Procurement Administrative Review Board; County Government of Laikipia & another (Interested Parties); Pelt Security Services Ltd (Ex parte) [2018] KEHC 2068 (KLR), which this court concurs with, if a government entity has the mandate to perform the tasks entrusted to it by the legislature without contravening the will of parliament, then a court will not interfere with the decision and/or mandate. 13.A similar position arises in relation to prayer (d), as Section 5 of the Access to Information Act sets out an elaborate procedure for the disclosure of information by public entities. In this case, there is no record that the defendants ever sought information from the land office and were denied, and even if that were so, they have not approached the Commission on Administrative Justice for a review of the land office’s decision. When dealing with the issue of access to information, the Supreme Court, in Aluochier v Senate & 2 others [2025] KESC 59 (KLR), paragraph 67 of its decision, held that a party seeking public information must follow the prescribed statutory procedure and exhaust the available remedies before filing a case before the court. In view of the findings on the issue, this court finds that the threshold for joinder of the 4th intended defendant has not been met. 14.Concerning prayers (e) and (f), this court finds that they constitute an abuse of the court process, as the court’s ruling of 9 November 2022 determined that the defendants had not satisfied the threshold for granting injunctive relief. The defendants have now restructured the previously sought injunctive orders as conservatory orders but have argued them as injunctive orders, which this court finds to be an abuse of the court process, as they seek similar orders through ingenious means. Furthermore, this matter does not constitute public interest litigation. Whether the defendants’ supporting affidavit is competent 15.Respecting this issue, the plaintiff has challenged the supporting affidavit on the grounds that it is neither notarised nor certified. The 1st defendant responded in her supplementary affidavit, asserting that the affidavit was executed while the defendants were in Kenya, and this position has not been displaced by contradictory evidence. This court has reviewed the supporting affidavit and is unable to comprehend the plaintiff’s arguments, which appear to be a red herring, as she seems to have been on a fishing expedition. Hence, this court finds that the supporting affidavit satisfies the criteria established under the Oaths and Statutory Declarations Act and Order 19 of the Civil Procedure Rules (CPR). The plaintiff’s arguments fail. Whether the plaintiff's actions violated the doctrine of lis pendens and what orders should this court issue. 16.This is the crux of the issue for determination, and in a addressing this issue, it is important to establish the prevailing jurisprudence over it. As to the definition of this doctrine, Black’s Law Dictionary, 11th Edition, Page 1117, defines it in the following manner: -“ 1.A pending lawsuit. 2. The jurisdiction, power, or control acquired by the court over property while a legal action is pending.3. A notice, recorded in the chain of title to real property, required or permitted in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome.” 17.The Court of Appeal decision of Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others [2017] KECA 79 (KLR) affirmed the application of the doctrine in Kenya and further stated as follows: -“On whether the doctrine can be interpreted to mean that the filing of proceedings serves as an automatic stay of the sale; we are of the view that it cannot. As stated under the repealed Section 52 of the ITPA, an automatic prohibition of dealings or transfers of the property is only during the ‘active prosecution’ of the proceedings. Consequently, while the parties are automatically duty bound to preserve the property during the pendency of active proceedings, the same cannot be said of fresh proceedings that have just been filed and whose prosecution is yet to begin…In Kenya, however, no such measures have been legislated regarding lis pendens. As such, the practical approach remains that mere institution of suit does not trigger the doctrine. Rather, it is upon the active prosecution of that suit that the doctrine automatically sets in.” 18.The non-exhaustive guiding principles of the doctrine were well articulated in the decisions of Co-operative Bank of Kenya Limited (Supra) and Naftali Ruthi Kinyua v Patrick Thuita Gachure & another [2015] KECA 911 (KLR). The principles are summarised as follows:a.It is necessary for the final adjudication of the matters before the court and in the general interests of public policy and good, effective administration of justice.b.The doctrine is couched in equity, good conscience or justice because they rest upon an equitable and just foundation, and it will be impossible to bring an action or suit to a successful termination if alienations are permitted to prevailc.Every purchaser pendente lite with or without notice is bound by the judgment or decree in the suit.d.There has to be active prosecution of the suit.e.the doctrine is based on the legal maxim ‘ut lite pendente nihil innovetur’ (During a litigation, nothing new should be introduced). 19.In the present case, the parties have provided differing dates and circumstances that directly affect the resolution of this issue. The defendants have also tendered certificates of official searches for L.R. Nos. 12715/1223 (I.R. No. 71863) and 1224 (I.R. No. 71863) (suit properties), with particulars of the records of entries therein, including the dates of various transactions. Considering that this is a court of record and noting that the plaintiff has not contested the contents of the search certificates, the court will rely on its own records and the entries in the search certificates to reach its findings and conclusions on whether the transactions over the suit properties violated the doctrine of lis pendens. 20.The defendants were registered as the owners of the suit properties on 27 December 1996. Upon filing this suit, the court entered an ex parte judgment in the plaintiff’s favour on 18 November 2021. The relevant decree was issued on 24 November 2021. Nevertheless, before it could be executed against the suit properties, the defendants filed a motion on 19 January 2022, dated 18 January 2022. The court heard the motion on the instant date and fixed it for hearing on 31 January 2022. This application and hearing notice were served on the plaintiff’s counsel on 20 January 2022 at 5:32 pm, as evidenced by the return of service of Phoebe Mwaniki of 21 January 2022. This return of service has never been disputed. 21.This service of the motion is critical, as it was served a few days before the decree was implemented in respect of the suit properties. The plaintiff cannot be heard to say that she was not personally served, as her counsel is her agent, as set out in Order 5 Rule 8 of the Civil Procedure Rules. Therefore, this court finds that, upon service on 20 January 2022, the suit remained active until such time that the application which sought to set aside the ex parte judgment was dismissed or the suit was determined on the merits. In this case, the court on 9 November 2022 ruled in the defendants’ favour and set aside the ex parte judgment in its entirety. Suffice it to say, the suit was revived on 20 January 2022 and remains active to date. 22.Following this and guided by the established principles of lis pendens, it was not open to the plaintiff, subsequent to this date of service, to register the decree on 26 January 2022; to transfer L.R. No. 12715/1223 (I.R. No. 71863) to her name on 3 February 2022; to transfer 1224 (I.R. No. 71863) to her name on 26 January 2022; to obtain provisional certificates of title for the respective suit properties on 20 July 2022 and 11 March 2022; and to transfer L.R. No. 12715/1223 (I.R. No. 71863) to the 3rd intended defendant on 5 September 2023 for consideration. 23.It is regrettable that the plaintiff, who has been aware of her unlawful conduct all along, sought review of this court's decision of 9 November 2022 through a motion, which the court subsequently declined in its ruling of 7 October 2025. Furthermore, she actively engaged in the proceedings by filing responses and submissions to various applications and made attendances through counsel, yet at no time did she bring to the court's attention the changes she made to the suit properties. The court has not looked upon her conduct favourably. 24.It is undoubted in this court’s mind that the transfers and the procurement of provisional title documents in quick succession were carried out in a sequential manner with the primary aim of securing an unfair advantage against the defendants after she became aware of their active participation in the matter and of their intention to contest her claim on the merits. Worse is, some of these registrations took place after the ex parte judgment had been set aside. Her actions are unacceptable, and the court accordingly finds that her actions were unlawful. 25.The plaintiff contends that the 3rd intended defendant, who benefited from the illegality and is now the registered owner of L.R. No. 12715/1223 (I.R. No. 71863), should not be made a party to these proceedings. The court concurs, finding that the illegal registration, which occurred during the course of these proceedings, should be cancelled, as it was null and void ab initio. Any claim the 3rd intended defendant has arising from such illegal conduct should be pursued through separate legal action against the plaintiff for damages, and not within the present proceedings. 26.The law and equity disapprove of conduct intended to undermine the administration of justice. The plaintiff in this case engaged in illegal acts, and neither she nor the 3rd intended defendant may derive any rights or benefits from them. Therefore, this court finds that all registrations and entries entered against the registers of the suit properties after 21 January 2022 are illegal. 27.In the end, for the reasons and findings above, the notice of motion dated 6 October 2025 is allowed by issuing the following final disposal orders: -a.The Chief Land Registrar is hereby directed to cancel all registrations and entries on L.R. No. 12715/1223 (I.R. No. 71863) made between 26 January 2022 and 5 September 2023, and any subsequent registrations thereafter, so that the land reverts to the names of Shmina Mandal And Shahel Mandal, the registered owners as at 27 December 1996.b.The Chief Land Registrar is hereby directed to cancel all registrations and entries on L.R. No. 12715/1224 (I.R. No. 71864) made between 26 January 2022 and 20 July 2022, and any subsequent registrations thereafter, so that the land reverts to the names of Shmina Mandal And Shahel Mandal, the registered owners as at 27 December 1996.c.That by this order, the provisional certificates held by Daniel Ngumbau Muia or any other person over L.R. No. 12715/1223 (I.R. No. 71863), and the provisional certificate held by the plaintiff over L.R. No. 12715/1224 (I.R. No. 71864) or by any other person, are deemed cancelled, null and void.d.A mention date shall be issued for purposes of pretrial directions.It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 2ND DAY OF JUNE, 2026.HON. A. Y. KOROSSJUDGE02.06.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Ms. Kanja Court Assistant.Mr. Kisala for Mr. Kimathi for defendants/applicants.Mr. Mwaura for the plaintiff/respondent.Mr. Kuria for the 4th defendant.No appearance for other parties.