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.

Succession and Why a Will Matters/Legal Guidance on Writing a Valid Will

 Introduction 

Understanding the Succession Process

When a person passes away, a succession process must take place before anyone can legally deal with their property. You cannot manage, transfer, or inherit property without going through this legal procedure.

The law requires you to go to court and present details regarding the death and the properties of the deceased. Here are some basic steps involved in the process:

1. Report the death to the court and initiate a succession case.

2. List all beneficiaries and the full inventory of the deceased’s property.

3. Ensure no rightful heirs or assets are left out.

4. Sit down as a family to discuss and agree on how the properties should be distributed.

It is important for family members to have open discussions and reach a consensus on inheritance matters before involving a lawyer. This helps to reduce conflict and ensures a smoother legal process.
 

The Importance of Keeping Clear Records and Writing a Will

It’s important to keep track of the properties you own - as well as any liabilities - so that, in the event of your passing, your affairs can be handled smoothly. Clear records help your family manage your estate effectively and avoid unnecessary disputes.

Unfortunately, only about 20% of people make a proper will. It is advisable to document your assets regularly, especially as you acquire new ones. Always update your will to reflect any additions. Writing a will is a key step in ensuring your wishes are respected and your loved ones are protected.

Why a Will Matters

A will allows a person to express their wishes and guide the distribution of their property - even after death. It ensures that there is clarity about who should benefit from the properties

Without a will, the succession process becomes more complex. The law will determine how the property is distributed, and the deceased will have no control over who inherits what. This can lead to disputes and unintended outcomes.

Legal Guidance on Writing a Valid Will

As lawyers, we advise individuals to ensure that their will is clear, detailed, and reflective of their intentions - taking into account their mental capacity at the time of writing. A will must meet specific legal requirements to be considered valid.

During the succession process, a will is subjected to scrutiny by the court. If it fails to meet the legal threshold -such as clarity, proper witnessing, or proof of mental soundness - it can be declared invalid. That’s why it’s essential to prepare a will carefully, clearly outlining the beneficiaries and how the property should be distributed.

The court’s duty to prevent estates from stagnation due to procedural errors (substitution of deceased administrators): The Case of In re Estate of Joel Rukwaro Thuku (Deceased) [2018] KEHC 6638 (KLR)

1. Brief Facts

• Joel Rukwaro Thuku died intestate on 21 February 2003.
• On 19 September 2011, letters of administration intestate were granted to Rhoda Rukwaro, Rebecca Waguthi Rukwaro, and Hosea Kanyogoro Rukwaro as joint administrators; a corresponding certificate of confirmation was issued.
• Before estate administration was completed, all three administrators died (between 2014–2017).
• On 19 March 2018, Monica Rukwaro, a beneficiary and heir, filed a summons under P&A Rules rule 49, seeking substitution as sole administrator. She attached: the grant/certificate, death certificates, and beneficiary consents. (Full case Available here)

2. Issues

1.      Can three deceased joint administrators be substituted by a beneficiary?

2.      If not, what legal remedy applies?

3.      What rules or statutes guide such succession scenarios?

3. Applicable Law

• P&A Rule 49: Summons procedure for applications not elsewhere provided.
• Section 81, Law of Succession Act: Upon death of one/more executors/administrators, powers vest in surviving ones.
• Section 76(e), Law of Succession Act + Schedule 5, para 16: Grant becomes inoperative if all administrators die; new grant de bonis non needed.
• Section 66, Law of Succession Act: Court may suo motu appoint an administrator.

4. Decision

• Rule 49 misapplied: Not a substitution application.
• Section 81 inapplicable: All original administrators dead—no survivor.
• Proper remedy: Grant letters of administration de bonis non under Section 76(e), subject to beneficiary consent.
• Court action:
• Revoked original 2011 grant.
• Issued grant de bonis non to Monica Rukwaro.
• Issued certificate of confirmation in her name.

 

⚖️ Legal Analysis

1. Misconception of "Substitution"

• The applicants mistakenly treated the application as substitution of administrators.
• Substitution is available if at least one surviving administrator remains (e.g., when additional appointment to a continuing trust is needed), which was not the case here.
• By contrast, when all administrators die, Section 81 does not apply; the grant lapses and a new grant process is required.

2. Operation of Law and Continuation of Grant

• The court correctly noted that a grant intestate becomes inoperative when administrators die.
• Section 76(e) activates, necessitating a de bonis non grant limited to completing administration—supported by precedent such as Hannah Njuki (1997) .

3. Role of Section 66 (Suo Motu Appointment)

• Even though the summons misreferenced rule 49, the court relied on its constitutional duty (Article 159) to ensure justice and use its inherent authority under Section 66 to appoint an administrator.
• This demonstrates judicial flexibility to correct procedural missteps in the interest of substantive justice.

4. Precedential Value

• The case confirms that:
• Complete lapse of administration occurs when all administrators/executors die.
• Misfiling under substitution provisions doesn't prevent courts from using appropriate succession mechanisms.
• Courts will trigger de bonis non grants and may correct proceedings suo motu to facilitate estate administration.

 

🧩 Conclusion

• Core outcome: Grant to deceased administrators revoked; new grant issued de bonis non to Monica Rukwaro.
• Substantive justice prioritized over procedural formalities.
• Judicial discretion under Article 159 and Section 66 was key in ensuring resolution despite misfiled summons.
• Important precedent for succession law: highlights distinction between substitution and de bonis non grants and emphasizes the court’s duty to prevent estates from stagnation due to procedural errors.

 

Full case: In re Estate of Joel Rukwaro Thuku (Deceased) [2018] KEHC 6638 (KLR)

 

DUE DILIGENCE IS PARAMOUNT: A REVIEW OF THE PRINCIPLES AFFIRMED BY THE SUPREME COURT IN DINA MANAGEMENT CASE

The Court underscored that prospective purchasers of land must go beyond routine searches at the land registry. Comprehensive due diligence now includes:

• Investigating the root of title to ensure that the initial allocation and subsequent transfers of land rights complied with constitutional and statutory procedures;

• Physically inspecting the land to verify occupation, use, zoning, and any competing claims;

• Scrutinizing the legality of any original grant or alienation, especially where the land in question is situated near public utilities or reserves.

This principle recognizes that a registered title is not inherently indefeasible where there is evidence that the title originated from a transaction that was procedurally flawed or illegal. Purchasers are therefore charged with an affirmative duty of inquiry, and failure to meet this standard may result in the loss of purported ownership rights.

WHO CAN PLACE A CAUTION OR CAVEAT? THE PROCESS OF LODGING & WITHDRAWAL/REMOVAL OF CAUTION/CAVEAT

 

WHO CAN PLACE A CAUTION OR CAVEAT

Any person who is claiming a contractual or other right over land amounting to a defined interest capable of creation by a registrable instrument, for example a lease, may lodge a caution with the Registrar against any dealing which is inconsistent with his or her interest. Entry of a transaction, with respect to such land, may not then be made unless the cautioner has received notice that the same has to be done. Lodging of a caveat or caution without reasonable cause can lead to a remedy in damages.

HOW TO PLACE A CAUTION

A caution is registered by a person who has an interest on a certain parcel of land to prevent any other person from dealing with the land in a way that prejudices the said interest. The effect of a caution is to forbid, to a certain extent, the registration of dealings and the making of entries in the register relating to the land without the cautioner’s consent or until the caution has been withdrawn by;

 The cautioner or;

Removed by order of the Court or;

The Registrar.

The registrar then gives notice in writing of a caution to the proprietor whose land, lease or charge is affected. So long as the caution remains registered, no disposition which is inconsistent with it shall be registered, except with the consent of the cautioner or by order of the court.

Section 71(1) of the Land Registration Act outlines the qualifications of a lodger. However, this is not an absolute right and the Registrar pursuant to Section 71 (4) of the Land Registration Act may reject a caution that is unnecessary or whose purpose can be effected by the registration of an instrument.

REGISTRATION PROCESS OF A CAUTION/CAVEAT

One requires the following documents:

The prescribed form (Form R.L. 22)

An affidavit explaining the interest the cautioner has in the land

A copy of the title (or the title number)

The prescribed fees

It is important to note that no notice is required to be given to the proprietor of the land before one lodges a caution. The documents are filed with the Registrar of Lands who then gives notice, in writing, of the caution to the proprietor whose land, lease or charge is affected by the caution.

WITHDRAWAL AND REMOVAL OF CAUTION

A caution can be removed by the person lodging the same, or by order of the court, or subject to Section 73 (2) of the LRA, by order of the Registrar, if such person fails to remove it after being served with a notice to do so by the Registrar.

According to Subsection 2 the registrar may, on the application of another person interested, serve notice on the cautioner warning him that his caution will be removed at the expiration of the time stated in the notice. If at the expiration of the time stated the cautioner has not objected, the registrar may remove the caution.

However, if the cautioner objects to the removal of the caution, they shall notify the Registrar, in writing, of the objection within the time specified in the notice, and the Registrar shall, after giving the parties an opportunity of being heard, make such order as the Registrar considers fit, and may in the order provide for the payment of costs.

EFFECTS OF LODGING A CAUTION OR CAVEAT WITHOUT CAUSE

Any person who lodges or maintains a caution wrongfully and without reasonable cause shall be liable, in an action for damages at the suit of any person who has sustained damage and to pay compensation to such person

This is because placing a wrongful caution that may lead a registered owner losing prospective clients would attract high damages and compensation. Cautions or caveats are temporary restraints that are lodged with the Registrar of Lands by people forbidding the transactions. Cautioners must prove that they are entitled to interests in the disputed property whose transfer they seek to forbid.

Section 75 of the LRA states that ‘Any person who lodges or maintains a caution wrongfully and without reasonable cause shall be liable, in an action for damages at the suit of any person who has sustained damage, to pay compensation to such person.’