Analysis of the Doctrine of Lis Pendens in Land Transactions

Definition:
Lis pendens is a Latin term meaning "pending lawsuit." In the context of land transactions, it refers to a formal notice that a legal action involving a claim on a specific piece of real property has been filed and is pending resolution.

 

Key Legal Effects:

1.      Notice to Third Parties:

o   Lis pendens serves as public notice to potential buyers, lenders, and other interested parties that the title to the property is subject to litigation.

o   Once filed and properly recorded, it effectively warns third parties that any interest they acquire in the property is subject to the outcome of the lawsuit.

2.      Cloud on Title:

o   It creates a "cloud" on the title, making it difficult or impossible for the owner to sell or refinance the property until the dispute is resolved or the lis pendens is lifted.

3.      Preservation of Rights:

o   It preserves the claimant's rights over the property by preventing its transfer to third parties who might otherwise claim to be bona fide purchasers.

 

Common Use Cases:

• Disputes over Ownership or Title: e.g., where a party claims an ownership interest due to adverse possession, trust issues, or breach of contract.
• Specific Performance Claims: especially in cases involving breach of contract for the sale of land.
• Partition Actions: where co-owners seek court-ordered division or sale of property.
• Foreclosure Proceedings: where the lender initiates legal action to recover debts secured by real property.

 

Requirements for Filing (May Vary by Jurisdiction):

• The underlying action must directly affect title or an interest in real property.
• The lis pendens must be filed with the appropriate land records office (e.g., county recorder or land registry).
• In some jurisdictions, a court approval or certification may be required before recording.

 

Impact on Land Transactions:

Party	Effect
Buyers	Will likely avoid purchasing property with a lis pendens due to risk of litigation.
Sellers	Will be unable to effectively market or transfer clean title.
Lenders	Generally will not approve financing on encumbered property.
Title Companies	Will flag title as defective and may refuse to insure until the lis pendens is resolved.

 

Removal or Discharge:

• Voluntary Withdrawal by the filer (if the dispute is resolved).
• Motion to Expunge by the property owner, especially if the underlying lawsuit is deemed frivolous or not affecting title.
• Court Order following a successful challenge to the validity of the lis pendens.

 

Risks of Abuse:

• Frivolous or strategic filings can be used to stall transactions or harass owners.
• Courts may impose sanctions or damages for wrongful or malicious filings.

 

Conclusion:

Lis pendens is a powerful legal tool in land disputes that ensures claims to real property are publicly known and protected during litigation. However, it significantly restricts the ability to deal with the property and must be used with caution and in compliance with legal requirements. Buyers and sellers must conduct due diligence to identify any pending lis pendens before completing transactions.

📚 1. The Legal Basis in Kenya

• Although Section 52 of the (now repealed) Transfer of Property Act expressly recognized lis pendens, the doctrine remains applicable through common law and equity under the Judicature Act and transitional provisions of the Land Registration Act (Refer to case (Cove Investments Limited v Rono & 2 others (Civil Appeal (Application) E051 of 2025) [2025] KECA 1089 (KLR) ).
• Courts repeatedly affirm that lis pendens “overrides” statutory provisions like the Registration of Titles Act when a dispute is pending (Refer to Carol Silcock v Kassim Sharrif Mohamed [2013] KEELC 137 (KLR)).

 

⚖️ 2. Key Principles

• Ut lite pendente nihil innovetur: “Nothing new should be introduced during litigation” – you cannot transfer property while a case involving it is ongoing (Refer to In Re Estate of Solomon Muchiri Macharia [2016] KEHC 5172 (KLR)).
• A transferee acquires the property subject to the outcome of the case—even if they purchased in good faith. 
• It doesn’t matter if no formal stop-order exists; pendente lite triggers automatic protection during "active prosecution". 

 

🏛️ 3. Kenyan Case Examples

Akoth & Another v Oloo & 2 Others (2023)

• Transfer during pending suit Kisumu ELC 350/2014 breached lis pendens.
• Court cited English and earlier Kenyan authority (e.g., Bernadatte Wangare Muriu) affirming that transfers affect litigants’ rights. 

Kimani v Kiurire & Another (2023)

• Transfer during active trial invalid: doctrine aims to prevent frustrating the court’s work.

Cove Investments Ltd v Rono & 2 others (2025)

• Supreme Court reaffirmed lis pendens survives statutory repeal under common law and equity, preserved in transitional provisions. 

Grace Wambui Muchoki v John Karanja Muchoki & others (2021)

• Even subdivision and sale within customary trust context ignored lis pendens; titles were voided despite registered sales.

Estate of Solomon Muchiri Macharia (2016)

• Confirmed doctrine applies under Land Registration Act; transfers during pendency don’t void title but remain subordinate to litigation outcome.

Co‑operative Bank v Njuguna & Others (2017)

• Court clarified lis pendens begins when suit is "actively prosecuted," not merely filed. Automatic bar applies during prosecution, but not at mere filing .

Anne Jepkemboi Ngeny v Tireito (2021)

• Transfer during litigation was a contempt and court ordered cancellation of new titles .

 

🧩 4. Practical Implications

Role	Effect of Lis Pendens
Seller	Cannot validly transfer, subdivide, or burden the property without court leave
Buyer	Acquires property subject to litigation outcome—even if acting in good faith
Title Office	Must flag titles that change during active litigation
Court	Can order cancellation of illicit transfers or subdivisions

 

🛠️ Challenges & Limitations

• Not automatic on filing: Only kicks in when the suit is actively contested (Case - Carol Silcock v Kassim Sharrif Mohamed [2013] KEELC 137 (KLR)).
• Misuse: Frivolous claims may trigger court-ordered compensations, similar to other common-law jurisdictions.

 

✅ Summary

• Lis pendens remains firmly embedded in Kenyan law, both by statute and common law.
• It neutralizes transfers during active litigation, preserving property rights for court resolution.
• Kenyan courts have repeatedly invalidated transfers and subdivisions during pendent lite—even for innocent buyers.