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ELCPartially AllowedEldoret E & L No. 786 of 2012 (formerly HCCC No. 81 of 2008, Nakuru; Eldoret HCCC No. 212 of 2011)· [2015] KEELC 18 (KLR)

Samuel Kiplangat Namini & 2 others v Town Council of Eldama Ravine & 8 others [2015] KEELC 18 (KLR)

Environment and Land Court
6 November 2015
3,757 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a private land deal made in a consent order, ruling public land disputes cannot be settled secretly between private parties.

What this practically means

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Executive summary

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This first-instance ruling of the Environment and Land Court at Eldoret determined two notices of motion by Charles Chebet, Reuben Cherutich Chelagat and Michael Kimani, traders occupying the suit land in Eldama Ravine Township. The applicants sought leave to be enjoined as co-defendants in Eldoret E & L No. 786 of 2012 (originally HCCC No. 81 of 2008, Nakuru), or in the alternative consolidation of that suit with their own Eldoret E & L No. 518 of 2013, plus setting aside of a consent dated 24th November 2014 which restored a judgment of 17th July 2013 and a stay of execution. The plaintiffs/respondents opposed, arguing the applicants were strangers without locus standi, that they held legitimate titles, that the suit was res judicata and that the consent was entered in good faith. Antony Ombwayo J framed five issues: sufficient interest, similarity of issues between the two suits, propriety of the consent, res judicata and indefeasibility of the plaintiffs' titles. The court held the applicants had locus standi as long-term occupants of allegedly public utility land; that the main issue in both suits was whether the land was public or private, justifying consolidation; that the consent, entered while a joinder application was pending and without the Deputy Registrar being informed, was against public interest and circumvented due process; that the suit was not res judicata since the applicants were not parties; and that indefeasibility of title cannot be determined by consent, Article 40 not protecting unlawfully acquired property. The consent was set aside due to public interest and the two suits consolidated, with proceedings to continue in E & L No. 518 of 2013.

Key legal issues

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01

Whether the applicants have sufficient interest/locus standi

Holding

The applicants have locus standi as actual occupants of the suit land, allegedly public land, who derive their livelihoods from it and have filed a related suit.

Reasoning

The applicants have occupied the suit lands for many years, operating businesses with permits from the local authority, and have formed the Ravine Stage Business Sacco Society Ltd. They are the persons directly affected by any eviction flowing from the consent order. Since the land is alleged to be public utility land, their interest is sufficient to agitate the matter notwithstanding that they were not named as parties to the suit.

p. 5
02

Whether the issues in the two suits are similar warranting consolidation

Holding

The main issue in both suits is whether the disputed property is public or private land; the suits are substantially similar and were consolidated.

Reasoning

In E&L No. 786 of 2012 the question is whether the suit lands are private property of the plaintiffs or public land belonging to the 1st defendant; in E&L No. 518 of 2013 the applicants claim rights as residents over the bus stage alleged to be a public utility illegally converted to private property. The core issue in both is the public or private character of the land, justifying consolidation, especially as suit 518 of 2013 had been stayed pending this suit.

p. 6
03

Whether the consent dated 24.11.2014 was proper

Holding

The consent was improper: it was entered while the applicants' application to be enjoined was pending, without the Deputy Registrar being informed, and was against public interest.

Reasoning

A pending application by the applicants to be enjoined as co-defendants was on record when the consent was recorded, yet the parties ignored them. The Deputy Registrar was not told of the pending joinder application or of the stayed similar suit. The court had re-opened the defence on public-interest grounds that the land was public, and the 1st defendant abandoning that defence by consent defeated public interest and due process.

p. 6
04

Whether the suit is res judicata

Holding

The suit is not res judicata because the applicants were not parties to the earlier determination.

Reasoning

Section 7 of the Civil Procedure Act requires identity of parties litigating under the same title, concurrence of jurisdiction and finality. Although the issues overlap, the applicants were not yet parties to this suit, so the parties are not the same and the plea fails.

p. 6
05

Whether the plaintiffs' titles are indefeasible

Holding

Indefeasibility cannot be established by consent; Article 40 does not protect unlawfully acquired property, and the 1st defendant's conduct in entering the consent after asserting public interest was suspect.

Reasoning

The 1st defendant had sworn that the land was public and obtained a review of the 17.7.2013 judgment on public-interest grounds, then abandoned that position by consent. The court declined to determine title on its merits but held that consent cannot settle indefeasibility and that unlawfully acquired property falls outside Article 40 protection.

p. 6

Legal principles established

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  • A consent judgment/order may be set aside where it was entered against public interest or to circumvent due process, particularly where it compromises a public body's defence of public land.
  • Indefeasibility of title cannot be determined by consent between parties.
  • Constitutional protection of property does not extend to property acquired unlawfully.
  • Persons in actual occupation of suit land alleged to be public land have locus standi to be heard in proceedings affecting that land.
  • For res judicata to apply the parties must be the same or litigating under the same title, with concurrence of jurisdiction and finality of the prior decision.

Court orders

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  1. 1.The consent order dated 24th November 2014 (recorded 1.12.2014), which restored the judgment delivered on 17th July 2013 and vacated the order setting it aside, is set aside due to public interest.
  2. 2.Eldoret E & L No. 786 of 2012 and Eldoret E & L No. 518 of 2013 are consolidated.
  3. 3.Proceedings to be undertaken in Eldoret E & L No. 518 of 2013.

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Government Lands Act Cap 280 (repealed)
  • Constitution of KenyaArticle 40(1); Article 40
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court under Articles 40 and 162(2) of the Constitution and the Civil Procedure Act, on applications for joinder, consolidation and setting aside a consent order

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Kiplangat Namini & 2 others v Town Council of Eldama Ravine & 8 others [2015] KEELC 18 (KLR)", Case Analysis (2015). Eldoret E & L No. 786 of 2012 (formerly HCCC No. 81 of 2008, Nakuru; Eldoret HCCC No. 212 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/18/eng@2015-11-06

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.