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ELCAllowed· [2023] KEELC 751 (KLR)

Republic v Chief Land Registrar & 3 others; Patel (Exparte); Warrakah & another (Interested Parties); Patel (Applicant) (Environment & Land Miscellaneous Case 3 of 2021) [2023] KEELC 751 (KLR)

Environment and Land Court
2 February 2023
3,833 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 set aside a 2017 land consent judgment because the affected title holders were never properly served or heard.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (A.E. Dena, J) determines an application dated June 18, 2021 by interested parties Dzochera Ali Warrakah and Wellington Osore Opimbi seeking to stay, vary, lift and/or set aside consent judgment orders issued on May 22, 2017 in judicial review proceedings commenced by Raojibhai G Patel. The consent judgment had directed rectification of the register for Kwale/Msambweni A/1706, cancelling titles the interested parties claimed to hold as purchasers for value. The interested parties asserted they were never served, relying on a process server's affidavit they disputed; the first interested party produced a flight schedule showing he was working as a pilot on the alleged date of service. The exparte applicant maintained the titles were fraudulently procured and that service was effected through representatives at a chief's baraza. The respondents, through the Attorney General, did not respond. The court applied the settled principles in Hirani v Kassan and Broke Bond Liebig v Mallya that a consent judgment may be set aside for fraud, collusion, absence of consensus, or where consent was given without sufficient material facts. Finding no proper service and no participation of the interested parties in the consent, and noting the consent determined their proprietary rights protected under Article 40 and Sections 24 and 25 of the Land Registration Act, the court set aside the consent judgment, maintained the status quo on the register and possession, prohibited registration of any disposition pending final determination, and ordered costs in the cause.

Key legal issues

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01

Whether the consent judgment of May 22, 2017 should be set aside for lack of service and non-participation of the interested parties

Holding

The court found that proper service was not effected on the 1st interested party (whose flight schedule showed he could not have attended the alleged meeting) and that the interested parties neither participated in nor consented to the consent judgment. Combined with the effect on their registered titles, this justified setting aside the consent judgment.

Reasoning

The court applied the Hirani v Kassan and KCB v Specialized Engineering principles that a consent judgment stands unless obtained by fraud, collusion, or without sufficient material facts. The process server's affidavit was contradicted by documentary evidence (flight schedule), the interested parties were unrepresented in the consent, and the consent determined their proprietary rights under Sections 24 and 25 of the Land Registration Act. Justice required that they be heard.

p. 6
02

Whether the court could hear the application notwithstanding defects in its legal foundation (mis-cited Article 49; absence of certiorari)

Holding

The court overlooked the technicality and invoked its inherent powers under Section 3A of the Civil Procedure Act and the overriding objective.

Reasoning

Although the application was grounded on Article 49 (which concerns arrested persons) and the applicants had not sought certiorari, the court held that the overriding objective under the Environment and Land Court Act and Article 162(2) of the Constitution, together with Section 3A, entitled it to hear the application to attain substantive justice.

p. 5
03

Whether Wellington Osore Opimbi could participate as an interested party despite not being listed in the initial proceedings

Holding

The court deemed him duly added as an interested party under Order 1 Rule 10(2) of the Civil Procedure Rules, his presence being necessary for effective adjudication.

Reasoning

Leave ought to have been obtained first, but his titles (3583 and 3633) were directly affected by the impugned orders. Citing Zephir Holdings and Departed Asians Property Custodian Board, the court held his presence necessary to effectually and completely adjudicate upon all questions in the suit, and deemed him added under Order 1 Rule 10(2).

p. 7

Legal principles established

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  • A consent judgment may be set aside where it was obtained by fraud or collusion, where there was no consensus between the parties, on grounds of public policy, or for reasons which would enable the court to set aside an agreement, including where consent was given without sufficient material facts.
  • A consent order entered into by counsel is binding on all parties and cannot be set aside or varied unless obtained by fraud, contrary to public policy, or where consent was given without sufficient material facts or in misapprehension of such facts.

Court orders

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  1. 1.The consent judgement orders issued on May 22, 2017 be and are hereby set aside
  2. 2.The status quo with regard to the register in respect of Kwale/Msambweni /A/1706 and status quo in regard possession thereof shall be maintained
  3. 3.The 1st and 2nd Respondents are prohibited from registering any disposition against Kwale/Msambweni /A/1706 until final determination of this matter
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 40, 48, 49, 50, 162(2)
  • Law Reform Act Cap 26 Laws of KenyaSections 8 and 9
  • Civil Procedure RulesOrder 53 Rules 1(1)(2)(3) and (4); Order 1 Rule 10(2)
  • Land Registration Act No 3 of 2012Sections 24, 25, 28
  • Environment and Land Court Act 2011Overriding objective; Sections 1A and 1B
  • Civil Procedure ActSection 3A

Cases cited (10)

  • Yalwala Versus Indimuli & Another
    [1989] KLR P 373
  • Republic Versus the Chief Land Registrar & Another Exparte James Njoroge Njuguna
    [2012] eKLR
  • Gandhi brothers versus HK Njage T/A HK enterprises
    HCCC No 1330 of 2001
  • Philip Chemwolo Vs Augustine kubende
    CA No 103 of 1984
  • Samson Munikah practicing as Munikah & Company Advocates vs Wedube Estates Limited
    Nairobi Civil Appeal No 126 of 2005
  • Broke Bond Liebig (t) Ltd V Mallya
    (1975) EA 266
  • Hirani V Kassan
    (1952) 19 EACA 131
  • Kenya Commercial Bank Ltd v Specialized Engineering Co Ltd
    (1982) KLR P 485
  • Zephir Holdings Ltd Versus Momosa Plantations Ltd, Jeremiah Maztagaro and Ezekiel Misango Mutisya
    [2014] eKLR
  • Departed Asians Property Custodian Board Versus Jaffer Brothers Ltd
    [1999] 1EA 55
Jurisdiction invoked
Sections 8 and 9 of the Law Reform Act Cap 26, Order 53 Rules 1(1)(2)(3) and (4) of the Civil Procedure Rules, inherent jurisdiction under Section 3A of the Civil Procedure Act, and Article 162(2) of the Constitution

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, "Republic v Chief Land Registrar & 3 others; Patel (Exparte); Warrakah & another (Interested Parties); Patel (Applicant) (Environment & Land Miscellaneous Case 3 of 2021) [2023] KEELC 751 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/751/eng@2023-02-02

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