East African Portland Cement Company Limited v Superior Homes Limited [2017] KECA 341 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed courts can vary consent judgments when a party hid material facts about land being targeted for compulsory acquisition.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to vary a consent decree and extend time fixed by the parties
The trial court had jurisdiction; grounds 1 and 2 of the appeal failed following the appellant's concession and on the merits, since section 95 CPA and Order 50 Rule 6 CPR apply to a decree arising from a consent
Counsel for the appellant conceded the trial court's power to set aside, vary or review a consent decree, mooting grounds 1 and 2. On the merits, the court held that a consent reduced to a decree becomes an order of the court subject to the law governing discharge of decrees; section 95 provides for enlargement of time even where the period originally fixed has expired, and Order 50 Rule 6 carries forward that general power. Rejection of the argument that the court cannot extend time set by parties themselves.
Whether there were compelling grounds to vary the consent decree as to time
Yes; non-disclosure by Portland of the Gazette Notice for compulsory acquisition and the Ndung'u Report recommendation for revocation of title, facts known to it and not to Superior Homes, were material facts justifying variation
The trial court found Superior Homes gave consent in ignorance of the material facts, which Portland knew and did not disclose and did not dispute. Before the Court of Appeal, Portland's counsel admitted the non-disclosure but contended there was no duty to disclose, relying on the 'as is' inspection clause. The court held the attitude said little about fair play and candour; no authority was cited that inspection extends beyond the physical, and Portland undertook to transfer without encumbrances.
Whether the Bank Facility Letter was agreed as security in place of the Bank Guarantee
On a balance of probability, the facility letter was agreed; Portland had no valid ground to rescind the decree
Clause 4 of the decree permitted 'such other security as shall be agreed between the parties'. Minutes of the 8th May 2013 crisis meeting recorded agreement to forward a bank confirmation letter, and the I & M facility letter was enclosed the following day; Portland never responded or controverted it, and Portland was itself unready to complete. The conflation of dates in Portland's affidavit undermined its case.
Standard for appellate interference with discretionary decisions
The Court of Appeal will not disturb a judicious exercise of discretion unless the judge misdirected himself, misapprehended the facts, or the decision is plainly wrong
The court applied the classic statements in Mbogoh & Anor v Shah and United India Insurance Co. Ltd & 2 Others v East African Underwriters (Kenya) Ltd, holding that it cannot interfere merely because it might have given different weight to the factors. Finding no misdirection and that the trial decision was not plainly wrong, all four grounds of appeal were rejected.
Legal principles established
#- A Court of Appeal will not interfere with a discretionary decision of the judge below unless it is established that the judge misdirected himself in law, misapprehended the facts, took into account or failed to take account of relevant considerations, or that the decision is plainly wrong
- A consent judgment or order has contractual effect and can only be varied or discharged on grounds which would justify setting aside a contract, such as fraud, collusion, agreement contrary to the policy of the court, or consent given without sufficient material facts or in ignorance or misapprehension of material facts
- Once parties compromise their suit under Order 25 Rule 5 CPR, a judgment ensues upon which a decree issues, subject to the law governing the discharge of court orders and decrees, including section 95 of the Civil Procedure Act permitting enlargement of time
- A party to a land sale transaction who knows of material facts threatening the validity of the title, such as a Gazette Notice for compulsory acquisition and a recommendation for revocation of title, is under a duty to disclose them; taking refuge in an 'as is' inspection clause does not avail a non-disclosing seller who also undertook to transfer without encumbrances
Court orders
#- 1.The appeal is dismissed with costs
- 2.The decision of the Environment and Land Court made on 11th March, 2014 is affirmed
- 3.The extended period of 120 days shall commence on the date of the judgment
- On appeal from
- High Court of Kenya at Nairobi (Environment and Land Court)
- ELC Case No. 931 of 2013
- Jurisdiction invoked
- First appellate jurisdiction under the Court of Appeal's statutory appellate powers (Civil Procedure Act/Civil Procedure Rules invoked below; no specific appellate provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Stephen Kimitei Arap Sang v Dominic Kiprotich & 8 others [2021] KEELC 3889 (KLR)[2021] KEELC 3889 (KLR)3 Mar 2021
Cite this brief
#Cite this brief
Caselaw, "East African Portland Cement Company Limited v Superior Homes Limited [2017] KECA 341 (KLR)", Case Analysis (2017). Civil Appeal No. 158 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/341/eng@2017-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.