Introduction
A recent ruling by the Court of Appeal in Cove Investments Limited v Rono & 2 Others [2025] KECA 1089 (KLR) has reaffirmed the enduring relevance of the doctrine of lis pendens in Kenya’s real estate landscape. This doctrine is based on the common law principle that a court has power, control or jurisdiction over property involved in a suit pending the continuance of the action and until final judgment is issued.
In this matter, the Court struck out an appeal after finding that the appellants had secretly transferred land during ongoing litigation, violating both a subsisting court order and the doctrine of lis pendens.
The foundation of this finding is that, if parties to a dispute are not prevented from transferring any of the property in question, then it would be impossible for any suit to be successfully terminated. In essence, the doctrine of lis pendens is a legal tool that ensures the integrity of the legal process by preventing the transfer of property that is subject to a pending lawsuit, ensuring that court decisions can be effectively enforced.
The principle has its place into the Kenyan law where the court stated, “Unlike the repealed TPA which expressly provided for the doctrine of lis pendens at Section 52, neither the Land Act nor the Land Registration Act explicitly mentions 'lis pendens'. However, this common law doctrine... is still applicable in Kenya, courtesy of the common law doctrines and the doctrines of equity preserved by Section 3(2)(c) of the Judicature Act…” – Court of Appeal, Para 37
Understanding this find and the principle behind it is crucial for investors, buyers or developers involved in real estate transactions. It provides mechanism for protecting their interest, but also requires careful consideration of the potential risks and implications of a pending lawsuit. This case carries serious implications for property buyers, investors, and developers who may unknowingly acquire property embroiled in legal disputes—only to have their rights invalidated.
Key Legal Risk: Buying Property Under Litigation
The Court warned that any transfer of land during ongoing litigation: -
- May constitute an abuse of court process
- Does not shield the buyer, even if they are a bona fide purchaser
- Is subject to the final outcome of the suit, which can override their ownership
- Can render an appeal moot if the seller has no remaining legal interest in the land
“Selling property, the subject of litigation during the pendency of litigation without express permission from the court is an affront to justice and must be abhorred.” – Para 43
Best Practice Recommendations for Buyers and Litigants
To protect your interests in any real estate transaction:
1. Conduct Full Legal Due Diligence
- Go beyond land registry searches. Check for any pending litigation or cautions.
- CM Advocates can assist in litigation registry checks, status of court orders, and adverse claims.
2. Insist on Warranties and Indemnities
- Ensure sale agreements contain clear warranties that the property is not subject to dispute.
- Include indemnity clauses to recover losses if the seller breaches these warranties.
3. Seek Court Clearance When in Doubt
If litigation is ongoing, engage counsel to obtain court-sanctioned clearance before proceeding.
4. Register Protective Entries and Inhibitions
- Where appropriate, lodge cautions or restrictions to prevent illegal dealings during transaction processes.
- For parties already involved in litigation, it is critical to register any injunctive court orders at the relevant land registry and formally request the Registrar to enter an inhibition to restrict any dealings affecting the subject property until final determination of the case.
How CM Advocates LLP Can Help
At CM Advocates LLP, we combine technical precision with commercial pragmatism to help clients: -
- Identify and mitigate litigation risks in real estate transactions
- Structure and negotiate robust sale agreements with protective clauses
- Represent clients in disputes involving fraudulent transfers, caveats, lis pendens violations, or breach of contract.
- Structure protective ownership vehicles, such as SPVs, family trusts, or nominee agreements
- Advise on tax, regulatory, and succession implications for landowners, developers, and diaspora clients
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Conduct comprehensive due diligence, including:
o Title verification
o Litigation record checks
o Verification of Land Control Board consents and environmental compliance
Whether you are acquiring residential plots, commercial developments, or large-scale investment property, our multidisciplinary team—drawing from our Real Estate, Banking & Finance, Dispute Resolution, and Tax & Estate Planning Units—offers integrated and strategic legal guidance.
Disclaimer :This publication is provided for general information purposes only and does not constitute legal advice. Specific legal advice should be obtained for individual matters.
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