Nduati v Gitiha Farm [1987] KECA 27 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot accept a court consent order when it helps you, then later reject it, especially where agricultural land lacks Land Control Board consent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the lack of leave under Order LIII rule 1 before the certiorari application rendered the proceedings and the consent order of June 20, 1984 a nullity
- 2.Whether the appellant could resile from, or deny having consented to, the consent order of June 20, 1984
- 3.Whether the application for review was properly dismissed (delay, absence of new evidence, and alleged error on the face of the record)
- 4.Whether a Land Control Board consent can be challenged by certiorari notwithstanding section 8 of the Land Control Act (Cap 302)
- 5.Whether the consent order of June 20, 1984, involving a transaction in agricultural land, was void for want of Land Control Board consent under section 6 of the Land Control Act
Key legal issues
#Effect of non-compliance with the leave requirement of Order LIII rule 1 on the certiorari proceedings and the consent order
The court had jurisdiction to record the consent order notwithstanding that leave was never granted, because the judge had not dealt with the application; parties may always compromise an application pending before the court, provided the consent does not purport to confer jurisdiction the court does not possess. Nyarangi JA, however, guarded against any suggestion that the High Court had jurisdiction to make the June 20, 1984 order.
The judge had not adjudicated the certiorari application but had sidetracked it into a consent order. Up to the moment of the consent order he could have granted leave. Parties have an inherent right to compromise a pending application unless the compromise purports to clothe the court with jurisdiction it lacks. The consent order did not deal with the application at all, so the proceedings were not a nullity. The judge's reasoning that the irregularity was waived was wrong, but the order stood on other grounds.
Whether the appellant could deny having consented to the June 20, 1984 order
He could not: having relied on the consent order in his own injunction application of October 1984 seeking to enforce it, he was estopped from denying his consent one year later; he could not approbate and reprobate.
The appellant had invoked the June 20, 1984 order in a supporting affidavit seeking an injunction to compel the committee to comply with it. Having thus clearly supported the order during the injunction proceedings, it was unjust for him to seek its review, and the judge was right to dismiss the review on that ground.
Whether section 8 of the Land Control Act bars certiorari against a Land Control Board consent
Certiorari does not infringe section 8, because section 8 presupposes the consent was regularly obtained; where the Board acts in excess of jurisdiction or wrongly in law, including upon fraud, certiorari is available.
The statutory appeal system under the Act operates only where consent has been refused. Finality under section 8 attaches only if the Board complies with proper procedure; fraud or statutory impropriety would mean the consent was not regularly obtained and can be quashed. In this case there were arguably grounds meriting the judge's attention on the leave application.
Validity of the June 20, 1984 consent order under section 6 of the Land Control Act
The consent order effected a further dealing in agricultural land; since no Land Control Board consent was obtained for it, it stands to be void for lapse of time, and is unenforceable unless consent is obtained.
The order departed from the terms of the December 2, 1983 Board consent. A transaction in agricultural land caught by section 6, whether inside or outside court, becomes void unless consent is acquired within time. The parties, who had obtained consent in 1977 and 1983, knew the rules; the prudent course was to present an updated plan to the Board for fresh consent.
Legal principles established
#- An application for an order of certiorari may only be made after leave has been granted under Order LIII rule 1; the leave requirement is mandatory
- A court's jurisdiction cannot be conferred by a compromise or consent between litigants
- Certiorari lies to quash decisions of statutory bodies such as Land Control Boards taken in excess of jurisdiction or contrary to law, notwithstanding the finality provision of section 8 of the Land Control Act
- Consent orders recorded by a court involving transactions in agricultural land caught by section 6 of the Land Control Act become void for want of timely Land Control Board consent, like any agreement outside court
- A litigant who has relied on and benefited from a consent order cannot later deny consenting to it; he cannot approbate and reprobate
- There is no time limit for applying for review where the application depends on ascertaining an error on the face of the record or newly discovered evidence
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay the costs of the appeal to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the principal judgment, dismissing the appeal against the refusal of review of the June 20, 1984 consent order, holding the judge had jurisdiction to record the consent order, that the appellant could not approbate and reprobate, and that any consent order involving a transaction in agricultural land caught by section 6 of the Land Control Act becomes void absent timely Land Control Board consent.
The real answer to this case is that the learned judge can record such genuine consent orders as the parties put before him, to conclude the business of his courtp. 4
Wrote the judgment
Concurred but guarded against any suggestion that the High Court had jurisdiction to make the June 20, 1984 order, holding that leave under Order LIII rule 1 is mandatory and that jurisdiction cannot be conferred on a court by a compromise between litigants.
Jurisdiction could not be covered on a court by a compromise on the part of the litigants.p. 5
Wrote the judgment
Concurred, describing the matter as a complete muddle of irregularities, holding that the appellant had adopted the consent order to his advantage and could not now seek to set it aside, and urging the parties to present a revised plan to the Land Board for fresh consent.
The appellant having adopted the consent order of June 20, 1984 to his advantage, now applies for the same consent order to be set aside. This is unjust.p. 6
- On appeal from
- High Court at Eldoret
- Not stated (certiorari application; consent order of June 20, 1984; ruling of October 14, 1985)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over an appeal from the High Court (first appeal against the dismissal of an application for review); no specific constitutional provision invoked
Relief refused
#Restoration/reinstatement of the order of the Senior Resident Magistrate, Eldoret
The order was never set aside; the magistrate's order could not simply be restored over the consent order the appellant had adopted
Review of the consent order of June 20, 1984 and subsequent orders
The appellant had relied on the consent order himself and could not approbate and reprobate; the judge was entitled to dismiss the review
Costs
Appellant to pay the costs of the appeal to the Respondents (costs of the appeal to the Respondent)
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.
For these reasons I would dismiss the appeal. As the appellant has been largely unsuccessful, I would order him to pay the costs of this appeal.
I too would, therefore, dismiss the appeal with costs to the Respondent and as Platt and Gachuhi, JJ A agree, it is so ordered.
Jurisdiction could not be covered on a court by a compromise on the part of the litigants.
It is well established that if organs like the Land Control Board have acted in excess of their jurisdiction, or wrongly in law, certiorari is available to quash their orders.
such order, if they involve a transaction in agricultural land caught by section 6 of the Land Control Act, become void for all purposes as provided by the Act, in the same way as agreements outside the court, unless consent is acquired within time
He cannot approbate and reprobate.
Issues in the judgment
#Internal tension between the leading judgment's holding that the judge had jurisdiction to record the consent order and Nyarangi JA's express guard against that proposition
Internal tension: the leading judgment states the appellant could not challenge the consent order because he supported it, yet elsewhere suggests review on ultra vires grounds would have been open
The judgment does not state the case number of the appeal or the names of the High Court judge and parties' full designations; the record also contains typographical errors (e.g. 'null and avoid', 'land board's shipment of December, 1983')
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nduati v Gitiha Farm [1987] KECA 27 (KLR)", Case Analysis (1987). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1987/27/eng@1987-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.