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ELCDismissedEnvironment & Land Petition 1488 of 2016· [2023] KEELC 20271 (KLR)

Okoiti & another v Afrison Export Import Limited & 5 others; Continental Credit Finance Limited (In Receivership) & 5 others (Interested Parties)

Environment and Land Court of Kenya
21 September 2023
19,714 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a public interest petition over Nairobi land, ruling the issues had already been finally decided in earlier court cases.

What this practically means

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Executive summary

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The Petitioners, acting in the public interest, challenged transactions surrounding L.R No 7879/4 (Drive In Estate, approx. 96 acres). They sought declarations that the 37.4 acres sold to the Government for GSU under the consent judgment in HCCC 617 of 2012 was public land; that the 6.7 acres being compulsorily acquired by the National Land Commission for KURA's Outer Ring Road project was already government land; that double compensation was being paid; that payment through Almasi Limited was irregular; and orders for surcharge, excision and registration of the land in the Government's name, and criminal investigations. The 1st and 2nd Respondents raised a preliminary objection on locus standi and res judicata; other Respondents pleaded sub judice. The court held the Petitioners had standing under Articles 22 and 258 of the Constitution, allegations of their improper motive being unproved. However, the substantive issues were res judicata: ownership of L.R 7879/4 and the 37.4-acre L.R 7879/24 and the compensation payable had been finally determined in HCCC 617 of 2012 (a consent judgment being as binding as one after trial) and in NLC vs Afrison [2019]. Only the question whether the 6.7 acres formed part of L.R 7879/24 escaped the plea. On that issue, the court found the 6.7 acres comprised 1.7 acres from the GSU land, for which the Respondents forfeited Kshs 130,000,000, and 5 acres from L.R 7879/25 which belonged to them; hence no double compensation arose. The valuation by NLC was proper under Section 113(2)(a) of the Land Act, and payment through Almasi Limited was validly authorised by company resolution. The Petitioners failed to prove their case on a balance of probabilities and the Petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the Petitioners have locus standi to bring the Petition as public interest litigation

Holding

The Petitioners have standing under Articles 22 and 258 of the Constitution; allegations that they were paid to file the Petition were unsupported by evidence

Reasoning

The court traced the liberalised standing regime under Articles 22 and 258 and the Mutunga Rules, holding that any person acting bona fide may institute proceedings in the public interest. The allegation that the Petitioners were mercenaries paid Kshs 10,000,000 was not substantiated by any evidence, so the preliminary objection on locus standi failed.

p. 21
02

Whether the Petition is res judicata

Holding

Substantially res judicata: ownership of L.R 7879/4 and the 37.4-acre L.R 7879/24, and the compensation payable, were finally determined in HCCC 617 of 2012 and NLC vs Afrison [2019]; only the question whether the 6.7 acres forms part of L.R 7879/24 escaped the plea

Reasoning

Applying Section 7 of the Civil Procedure Act and John Florence Maritime, the court found the elements conjunctively satisfied: the issues of ownership and acreage were directly and substantially in issue, finally determined by competent courts, with commonality of interest under Explanation 6 to Section 7. A consent judgment is final. The court cannot question the High Court's competence in a matter of equal status.

p. 28
03

Whether the Petition is sub judice HCCC Petition 2521 of 2015

Holding

The sub judice plea failed because the Respondents did not avail the pleadings in the earlier petition

Reasoning

Although sub judice is codified in Section 6 of the Civil Procedure Act and the conditions were outlined per KNCHR vs AG, the Respondents asserting the doctrine did not provide the pleadings in HCCC 2521 of 2015, so the plea could not be sustained.

p. 29
04

Whether the 6.7 acres under compulsory acquisition is public land attracting double compensation

Holding

The 6.7 acres comprises 1.7 acres from L.R 7879/24 (GSU land) and 5 acres from L.R 7879/25; the Respondents forfeited Kshs 130,000,000 for the 1.7 acres, so no double compensation arises

Reasoning

On the uncontroverted admissions and correspondence, the court found the acquisition straddles two parcels. Compensation for the 5 acres is properly due as L.R 7879/25 belongs to the Respondents; for the 1.7 acres the Respondents agreed to forfeit Kshs 130,000,000, which was already factored into the L.R 7879/24 acquisition, defeating the double-compensation claim.

05

Whether the valuation for the compulsory acquisition was improper because the Government Valuer was not involved

Holding

The valuation was proper; under Section 113(2)(a) of the Land Act the National Land Commission's award is final and conclusive evidence of value, and the Petitioners led no evidence to the contrary

Reasoning

Relying on Patrick Musimba and the court's own earlier decision in NLC vs Afrison, the court held the NLC is mandated to form its own opinion of value with transparency. A valuation report by an NLC valuer was exhibited and the NLC did not deny the value; any contestation on value was not within the province of the Petition absent evidence.

p. 32
06

Whether payment of compensation through Almasi Limited was irregular

Holding

Not irregular; a company resolution is a recognised legal instrument appointing a statutory agent, and no cogent evidence of impropriety was adduced

Reasoning

Distinguishing the earlier NLC vs Afrison decision (which condemned payment to Whispering Palms Estate Limited without any legal instrument), the court held that a resolution by a company directing payment to a specific account constitutes proper appointment of a statutory agent under Part VIII of the Land Act. The Petitioners' allegations were mere suppositions.

p. 33

Legal principles established

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  • A consent judgment is as binding and final for purposes of res judicata as a judgment after trial
  • A judgment in rem on ownership of land binds all persons, including the government, until set aside, reviewed or varied
  • Articles 22 and 258 of the Constitution confer standing on any person acting bona fide in the public interest; allegations of improper motive must be proved by evidence
  • A company resolution directing payment of compensation to a specific account is a proper appointment of a statutory agent under Part VIII of the Land Act

Court orders

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  1. 1.The Petition dated 28th November, 2016 is dismissed
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1, 2, 3, 4(2), 10, 19, 20, 21, 22, 23, 24, 27, 40, 47, 50(1), 50(4), 159, 162(2), 165, 258, 259
  • Public Finance Management ActSection 68 (Cap 140)
  • Civil Procedure ActSections 6 and 7 (including Explanation 6 to Section 7)
  • Environment and Land Court ActSection 13
  • Land ActPart VIII; Sections 113(2)(a), 115
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Rule 4(1)
  • Government Lands ActSection 136
  • Government Proceedings ActSection 13A
  • Companies Act (Cap 486, repealed)Section 228
  • Transfer of Property ActSection 69
  • Physical Planning Actenforcement notices (referred to in consent in JR ELC 72 of 2008)

Cases cited (24)

  • Mukisa Biscuit Manufacturing Co. Limited vs West End Distributors Ltd
    [1969] EA 696

    Definition of a preliminary objection as a point of law

  • Aviation & Allied Workers Union Kenya vs Kenya Airways Ltd & 3 Others
    [2015] eKLR

    A preliminary objection may only be raised on a pure question of law

  • Alfred Njau and Others vs City Council of Nairobi
    (1982) KAR 229

    Definition of locus standi

  • Priscilla Jesang Koech vs Rebecca Koech & 3 Others
    [2018] eKLR

    Locus standi goes to the root of any suit

  • Law Society of Kenya vs Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000

    A party without locus standi cannot bring a suit

  • Sisilia Nyakoe & Another vs Attorney General & 4 Others
    [2021] eKLR

    Locus standi is the right to appear and be heard in Court

  • Ferdinand Ndung'u Waititu vs Benson Riitho Mureithi & 2 Others
    [2018] eKLR

    Articles 22 and 258 confer standing on any person in constitutional proceedings

  • Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others
    [2013] eKLR

    Liberalised locus standi under Articles 22 and 258; bona fide requirement

  • S.P. Gupta v President of India & Others
    AIR [1982] SC 149

    Broad rule of standing for public wrongs

  • Rex v Inland Revenue Commrs
    [1981] 2 WLR 722

    Lord Diplock on locus standi for pressure groups

  • Independent Electoral & Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR

    Res judicata is properly addressed in limine; conjunctive elements

  • Accredo AG & 3 others vs Stefano Uccelli & another
    [2019] eKLR

    Res judicata and jurisdiction are pure points of law not requiring evidence

  • John Florence Maritime Services Limited & Another vs Cabinet Secretary Transport & Infrastructure & 3 Others
    (Petition 17 of 2015) [2021] KESC 39 (KLR)

    Elements of res judicata; its application to constitutional litigation and exceptions

  • National Land Commission vs Registered Trustee of the Arya Pratinidhi Sabha, Eastern Africa & Another
    [2019] eKLR

    Government cannot circumvent res judicata by acting through another department

  • Julius Muthoka Ndolo vs Park Towers Limited & 2 Others
    [2019] eKLR

    Consent judgments are final for res judicata purposes

  • Kamunge & Others vs Pioneer General Assurance Society Ltd
    [1977] EA 263

    A consent judgment binds as if after trial

  • Pop-in (Kenya) Ltd and 3 Others vs Habib Bank, A. G. Zurich
    C.A. No. 80 of 1988

    Res judicata extends to every point properly belonging to the subject matter of litigation

  • Kenya National Commission on Human Rights vs Attorney General, Independent Electoral & Boundaries Commission & 16 others
    [2020] eKLR

    Conditions for invoking the sub judice doctrine

  • Patrick Musimba vs National Land Commission & 4 Others
    [2016] eKLR

    NLC must originally assess value of land for compulsory acquisition

  • National Land Commission vs Afrison Export Import Limited & 10 Others
    [2019] eKLR

    Ownership of L.R 7879/4; valuation under the Land Act; payment to agents

  • Afrison Export Limited and Anor vs Continental Credit Finance Limited (in liquidation) and 2 Others
    [2013] eKLR; HCCC 617 of 2012

    Prior determination of ownership of the 37.4 acres and compensation

  • David Mangi Kithunga vs The Attorney General
    HCCC No 330 of 2015

    Cited by Respondents as a prior determination

  • Republic vs The City Council of Nairobi & Others exparte Afrison Export Import Limited and Another
    JR ELC Civil Application No 72 of 2008

    Cited by Respondents as a prior determination

  • Edmond Richard Mukoya versus the National Land Commission & Others
    Constitutional Petition No 2521 of 2015

    Cited as res sub judice

Jurisdiction invoked
Article 162(2) of the Constitution as read with Section 13 of the Environment and Land Court Act; Articles 22 and 258 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, "Okoiti & another v Afrison Export Import Limited & 5 others; Continental Credit Finance Limited (In Receivership) & 5 others (Interested Parties)", Case Analysis (2023). Environment & Land Petition 1488 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20271/eng@2023-09-21

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