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ELCDismissedPetition (Kwale ELC, filed 14/3/2023)· [2024] KEELC 5799 (KLR)

Shee & 2 others v Alliance Hotels Limited & 2 others (Environment & Land Petition 2 of 2023) [2024] KEELC 5799 (KLR)

Environment and Land Court
6 August 2024
7,183 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~29 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Petitioners, claiming ancestral ownership of land parcels Kwale/Galu Kinondo/667, 668 and 669, sought declarations that the decisions of the Msambweni Land Disputes Tribunal of 2005 were regular and should be upheld, that the consent order in Mombasa Judicial Review No 2 of 2006 was null and void, that the titles issued to the 1st and 2nd Respondents stood revoked, ownership declarations, a permanent injunction and cancellation of the Respondents' titles. The Respondents raised preliminary objections on res judicata, limitation, abuse of process and lack of standing, contending the disputes were conclusively settled by the consent of 5/5/2008 and by the judgment in Kwale ELC Petition No 18 of 2021 delivered 13/3/2023. The court found the petition was not res judicata on account of the 2021 judgment, since that petition concerned nullification of National Land Commission proceedings and the ownership prayer was declined there, and a consent order is not a final judgment on the merits for res judicata purposes. However, the court held it could not review the consent of a court of concurrent jurisdiction, that no fraud by prior counsel was proved to the requisite standard, and that the tribunal's award quashed by the consent remains void. It further held that the Land Disputes Tribunal lacked jurisdiction to determine title to registered land, so its award cancelling titles was a nullity. The petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the petition is res judicata

Holding

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

Reasoning

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.

p. 10
02

Whether the consent order in Mombasa Judicial Review No 2 of 2006 can be declared null and void

Holding

No; the consent was validly recorded by the High Court and cannot be disturbed by a court of concurrent jurisdiction; fraud was not proved

Reasoning

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.

p. 12
03

Whether the Msambweni Land Disputes Tribunal decisions were regular and should be upheld

Holding

No; the tribunal had no jurisdiction to determine title to registered land, and its quashed award cannot be upheld

Reasoning

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.

p. 13
04

Entitlement to the orders sought

Holding

Petitioners are not entitled to the orders sought; petition dismissed

Reasoning

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.

p. 13

Legal principles established

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  • 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

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  1. 1.The petition is dismissed for lacking in merit
  2. 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

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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, "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.