Intercountries Importers and Exporters Limited v Teleposta Pension Scheme Registered Trustees & 5 others
The bottom line
#Kenya's Court of Appeal set aside a consent order because one party hid existing leases, proving that non-disclosure of material facts can undo even agreed court orders.
What this practically means
#Executive summary
#Key legal issues
#Whether non-disclosure of material facts justified setting aside the consent order
The 1st respondent's failure to disclose the existence of fresh leases running from 1st July 2015 to 30th June 2017, when only leases expiring October 2016 were mentioned, constituted non-disclosure of material facts sufficient to set aside the consent order.
The court found that the 1st respondent did not deny the existence of the 2015-2017 leases nor that the applicant and the Court were uninformed of them. The consent order's liberty to enter fresh leases from 1st November 2016 presupposed that the only tenancies were those expiring 30 days after the consent. Had the applicant known of the subsisting leases, it might not have consented. Full disclosure of prevailing tenancies was therefore absent, satisfying the threshold for setting aside.
The governing principles for setting aside consent orders
Adopting Brooke Bond Liebig v Mallya and Flora N. Wasike v Destimo Wamboko, a consent judgment binds parties and may be set aside only on grounds of fraud, collusion, absence of consensus, public policy, mistake, non-disclosure of sufficient material facts, or other grounds available for rescission of a contract.
The court restated the settled principles: a consent order made with the consent of counsel is binding on all parties and those claiming under them, and cannot be varied or discharged unless obtained by fraud or collusion, contrary to public policy, without sufficient material facts, or for a reason which would enable a court to set aside an agreement. These authorities were applied to the facts of the present application.
Whether alleged amendments to the consent order should be addressed
The court declined to address the alleged amendments to the consent order because it could not locate them on the record.
Counsel for the applicant referred to amendments to the consent order, but upon close scrutiny of the record the court was unable to locate them. In the absence of any documentary foundation, the court held it was not in order to address the alleged amendments, confining its determination to the consent order as adopted.
Legal principles established
#- A consent order may only be set aside where it is demonstrated that it was procured through fraud, non-disclosure of material facts or mistake, or for a reason which would enable a court to set aside an agreement
Court orders
#- 1.The consent order recorded on 27th September 2016 is set aside
- 2.The main application, Civil Application No. Nai. 203 of 2016 filed on 2nd September 2018, is reinstated for hearing
- 3.The main application to be heard on a priority basis
- 4.Costs of the application to abide the outcome of the main application
- On appeal from
- High Court
- Jurisdiction invoked
- Inherent appellate jurisdiction of the Court of Appeal to set aside a consent order adopted by it (arising from Civil Application No. Nai. 203 of 2016, a stay application in intended appeal against High Court judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mahinda & 4 others v Wainaina & 4 others (Environment and Land Appeal E041 of 2024) [2026] KEELC 3983 (KLR)[2026] KEELC 3983 (KLR)1 Jul 2026applied
- Gerald & another v Blatterman (Thro' his Attorney Shabir Hatim ali Taheri) & 2 others (Environment and Land Appeal 35 of 2022) [2025] KEELC 8063 (KLR)[2025] KEELC 8063 (KLR)20 Nov 2025
Cite this brief
#Cite this brief
Caselaw, "Intercountries Importers and Exporters Limited v Teleposta Pension Scheme Registered Trustees & 5 others", Case Analysis (2019). Civil Application No. Nai. 203 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/928/eng@2019-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.