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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this petition is res judicata
- 2.Whether the Msambweni Land Disputes Tribunal in Land Dispute Cases No. 7 of 2005, 10 of 2005 and 13 of 2005 was regular and fair and should be upheld
- 3.Whether this Honourable court can declare the consent order and proceedings in Mombasa Judicial Review No 2 of 2006 as irregular, null and void
- 4.Are the Petitioners entitled to the orders sought?
- 5.Who should bear the costs of this petition?
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Section 3(1) of the repealed Land Disputes Tribunal Act limited tribunals to boundary disputes, claims to occupy or work land, and trespass, not title determinations.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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 165 Constitution of Kenya 2010 (Environment and Land Court); petition under Articles 19, 22, 23, 40, 47, 50, 64, 159, 258
Relief refused
#Declaration upholding the Msambweni Land Disputes Tribunal decisions as regular and fair
The tribunal's award had been quashed by the consent order in Mombasa Judicial Review No 2 of 2006, and the tribunal lacked jurisdiction to determine title to registered land
Declaration that the consent order and proceedings in Mombasa Judicial Review No 2 of 2006 are irregular, null and void
A court of concurrent jurisdiction cannot review or sit on appeal over the consent judgement of the High Court; fraud was not proved to the required standard
Declaration that Petitioners are the legal and equitable owners and orders for revocation of the Respondents' titles and permanent injunction
Petitioners not entitled to the orders sought; the consent stands and the tribunal decision quashed
Costs
Each party to bear their own costs of the petition
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I have noted the protracted proceedings in respect of the suit properties and invoking this courts discretion each party should bear their own costs of this petition.
The upshot of the foregoing is that I find the Petition to be lacking in merit and it is hereby dismissed.
The Petitioners now want to review the same through the back door by way of this petition. I respectfully refuse to be led into that trap in the guise of a petition or constitutional right.
“If an act is void, then it is in law a nullity. it is not only bad but incurably bad…..and every proceeding which is founded on it is also bad.”
In my view the consent recorded before Sergon J cannot be termed as a final judgement for purposes of the doctrine of res judicata.
It is trite that the standard of proof for fraud is slightly higher than that of a balance of probabilities
Issues in the judgment
#Petitioners referred to as both 'Petitioners' and 'Defendants' in the coram list
Directions dated for a hearing on 29/01/2023 which predates the directions and the 2023 filing chronology
Case number of the petition not stated in a heading; identified only as filed 14/3/2023
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.