Republic v Director of Surveys & another Ex parte Seven Island Watamu Limited; Watamu Mens Friday Limited & another (Interested Parties) [2021] KEELC 3150 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a landowner's case and cancelled orders it won, because it hid ongoing lawsuits over the same property from the court.
What this practically means
#Executive summary
#Key legal issues
#Whether parties directly affected by judicial review orders who were neither parties nor notified are entitled to have those orders set aside
Yes. The Interested Parties stand to be directly affected by the amendment of the Register Index Map over the contested title, and their participation was necessary for effective adjudication; the orders were set aside and leave to participate granted.
The court found the issues in the JR proceedings common and intertwined with existing suits between the same parties over Kilifi/Jimba/1125, whose creation had allegedly been declared irregular by the Court of Appeal. Amendment of the RIM was prima facie likely to prejudice the Interested Parties, who should have been joined or notified.
Whether the Ex-parte Applicant was guilty of material non-disclosure
Yes. It filed the JR proceedings aware of the pending suits between itself and the Interested Parties over the same title but did not disclose them; both Respondents, who are also parties in those suits, likewise failed to disclose and conceded the amendment.
The court applied the principle that a party seeking relief must candidly disclose all material facts. Failure to disclose existing litigation over the same subject matter, while obtaining orders capable of undermining those suits, constituted non-disclosure and abuse of process. Non-disclosure disentitles the offending party from retaining any advantage gained.
Consequences of abuse of the Court process by the Ex-parte Applicant
The substantive Motion dated 22nd May 2019 was struck out with costs in addition to setting aside the orders of 5th December 2019.
Having found that the Motion was filed in abuse of the Court process, the court exercised its discretion to terminate the proceedings rather than merely set aside the orders, since existing suits between the parties already covered the contested issues.
Legal principles established
#- A party who stands to be directly affected by orders in a suit, or whose participation is necessary for effective adjudication, must be made a party or at least be notified of the suit
- A litigant owes the Court a duty of full and candid disclosure of all material facts; concealment of material facts disqualifies the litigant from relief
- Any advantage gained through non-disclosure, including ex-parte orders, will be taken away from the offending party
Court orders
#- 1.The orders issued by the Court on 5th December 2019 are set aside and discharged
- 2.Leave granted to the two Interested Parties/Applicants to file a response and participate in the hearing
- 3.The Ex-parte Applicant's Motion dated 22nd May 2019 is struck out
- 4.Costs of the applications and of the struck-out Motion awarded to the Interested Parties/Applicants
- Jurisdiction invoked
- Judicial review jurisdiction of the Environment and Land Court over survey/land registration administrative action (Fair Administrative Action/statutory JR jurisdiction – not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Director of Surveys & another Ex parte Seven Island Watamu Limited; Watamu Mens Friday Limited & another (Interested Parties) [2021] KEELC 3150 (KLR)", Case Analysis (2021). Judicial Review Miscellaneous Application (ELC JR) – Malindi (motion dated 22nd May 2019, with applications dated 20th December 2019 and 17th January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3150/eng@2021-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.