Shee & 2 others v Alliance Hotels Limited & 2 others (Environment & Land Petition 2 of 2023) [2024] KEELC 5799 (KLR)
The bottom line
#The Environment and Land Court in Kwale dismissed a land ownership petition, ruling that a valid 2008 consent order stands and quashed tribunal decisions carry no legal weight.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition is res judicata
Not res judicata in respect of Kwale ELC Petition No 18 of 2021, since that petition concerned the nullification of the NLC proceedings and the ownership prayer was declined
The court compared the two petitions. The former petition sought nullification of the National Land Commission's decisions and the gazette notice; the prayer for declaration of ownership was declined. The issues were therefore not directly and substantially the same, so section 7 res judicata did not bar the present petition on that ground.
Whether the consent order in Mombasa Judicial Review No 2 of 2006 can be declared null and void
No; the consent was validly recorded by the High Court and cannot be disturbed by a court of concurrent jurisdiction; fraud was not proved
The consent was adopted as judgement of the High Court which had jurisdiction. Review was available but not pursued. No complaint was lodged with the Bar Association, and fraud must be proved to a higher standard per Ratilal Patel and Vijay Morjaria; none was demonstrated. The court declined to tamper with the consent.
Whether the Msambweni Land Disputes Tribunal decisions were regular and should be upheld
No; the tribunal had no jurisdiction to determine title to registered land, and its quashed award cannot be upheld
Section 3(1) of the repealed Land Disputes Tribunal Act limited tribunals to boundary disputes, claims to occupy or work land, and trespass, not title determinations. The tribunal's award cancelled titles, exceeding jurisdiction, and following MacFoy, a void act is a nullity and proceedings founded on it are also bad.
Entitlement to the orders sought
Petitioners are not entitled to the orders sought; petition dismissed
Having found the tribunal decisions quashed and void for want of jurisdiction, and the judicial review consent lawful and binding, the declaratory, injunctive and cancellation orders sought could not issue.
Legal principles established
#- All elements of res judicata under section 7 of the Civil Procedure Act must be satisfied, including that the former suit was heard and finally determined by a competent court
- A consent order determined by negotiation between counsel is not a final judgement on the merits for purposes of res judicata
- A consent order entered by counsel binds parties and can only be set aside on proof of fraud, agreement contrary to policy of the court, or non-disclosure/misapprehension of material facts
- Land Disputes Tribunals had no jurisdiction to determine title to registered land
- A court of concurrent jurisdiction cannot revise a consent judgement of another court; a party must pursue review or appeal
- Fraud must be proved to a standard higher than a balance of probabilities
Court orders
#- 1.The petition is dismissed for lacking in merit
- 2.Each party should bear their own costs of this petition
- Jurisdiction invoked
- Article 165 Constitution of Kenya 2010 (Environment and Land Court); petition under Articles 19, 22, 23, 40, 47, 50, 64, 159, 258
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shee & 2 others v Alliance Hotels Limited & 2 others (Environment & Land Petition 2 of 2023) [2024] KEELC 5799 (KLR)", Case Analysis (2024). Petition (Kwale ELC, filed 14/3/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5799/eng@2024-08-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.