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Court of AppealDismissedCivil Appeal No. 223 of 2019· [2021] KECA 1079 (KLR)

Onesmus Sintole Saidimu v Sane Ole Saidimu Nkikoora & 5 others

Court of Appeal
29 January 2021
RNR. N. NambuyeHOHannah OkwenguFSF. Sichale
4,262 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a consent judgment can be set aside where parties hid another pending claim over the same land.

What this practically means

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Executive summary

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This appeal arose from a ruling of the Environment and Land Court at Kajiado (C. Ochieng', J) delivered on 27th February 2019 in two applications arising from competing claims over land parcel Kajiado/Purke/334. The first application sought substitution of Semenkurr for the deceased plaintiff Nkikoora in a suit filed after his death; the second sought Semenkurr's joinder as an interested party in a separate suit and setting aside of a consent judgment transferring the suit property to the appellant Onesmus. The High Court declined substitution because the deceased-plaintiff suit was incompetent, but allowed joinder and set aside the consent judgment. Onesmus appealed, contending the Judge erred in failing to strike out the null suit, in enjoining Semenkurr after the second suit had been determined by consent, in setting aside the consent, and in conducting the proceedings in a disjointed manner. The Court of Appeal, in a single judgment of the court, dismissed the appeal. It held that a suit filed in the name of a dead plaintiff is a nullity needing no formal striking-out order; that 'proceedings' under Order 1 rule 10(2) extends beyond judgment, so joinder after judgment is permissible where the court has jurisdiction over a post-judgment application, and the Judge was not functus officio; and that the consent was properly set aside for material non-disclosure and lack of good faith, its parties having concealed the existence of the deceased's pending claim over the same property. The Court cured an inadvertent omission by expressly ordering Semenkurr's joinder as an interested party, upheld the ruling below, dismissed the appeal and awarded Semenkurr the costs of the appeal.

Key legal issues

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01

Joinder of an interested party after judgment has been entered by consent

Holding

The court retains jurisdiction to join an interested party post-judgment where a post-judgment application (such as to set aside a consent) is before it; Order 1 rule 10(2) 'proceedings' extend beyond judgment.

Reasoning

Order 1 rule 10(2) permits joinder at any stage of the proceedings. Neither the Act nor the Rules defines 'proceedings'; adopting Black's Law Dictionary, 'proceeding' includes steps taken after judgment so long as the court has jurisdiction to entertain them. Because the Judge had jurisdiction to consider the propriety of the consent judgment, she could not do so without joining Semenkurr, and the court was not functus officio.

p. 4
02

Setting aside a consent judgment

Holding

A consent judgment can only be set aside on grounds that would justify setting aside a contract; material non-disclosure and lack of good faith in recording the consent justified setting it aside.

Reasoning

Following Flora Wasike v Destino Wamboko and Purcell v FC Trigell, a consent order stands on the same footing as a contract between legally competent persons with knowledge of material matters. Here the parties to the consent were aware of Nkikoora's pending claim over the same suit property yet concealed that suit's existence when recording the consent. The Court found material non-disclosure, lack of candour and an intention to defeat Nkikoora's claim, which justified setting the consent aside.

p. 4
03

Whether a suit filed in the name of a dead plaintiff must be formally struck out

Holding

No; such a suit is a nullity which is automatically void and no striking-out order is necessary.

Reasoning

Kajiado ELC No. 943 of 2017 was filed in Nkikoora's name after his death. Applying Macfoy v United Africa Company, an act that is void is in law a nullity, incurably bad, and needs no court order to set aside. The Judge therefore could not be faulted for declining substitution, and an order striking out the suit would have been superfluous and needless.

p. 3
04

Procedural regularity of hearing two applications together without formal consolidation

Holding

Hearing closely intertwined applications together under directions complied with by all parties caused no prejudice; any disjointedness is curable under Article 159(2)(d).

Reasoning

There was no formal application for consolidation, but the two applications were heard together through written submissions following court directions that no party objected to; parties cannot now complain. Given the close correlation between the applications and the effect of each on the other, hearing them together was appropriate, and the procedural irregularity, if any, is cured by the overriding objective.

p. 5

Legal principles established

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  • A suit filed in the name of a deceased person is a nullity; no formal order striking it out is needed.
  • The word 'proceedings' in Order 1 rule 10(2) of the Civil Procedure Rules is not confined to pre-judgment stages; a court retains power to join an interested party after judgment where it has jurisdiction to entertain post-judgment processes.
  • The test for joinder of an interested party is whether the proposed party has an identifiable stake or legal interest or duty in the proceedings.
  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract.

Court orders

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  1. 1.The appeal is dismissed and the ruling of the lower court is upheld
  2. 2.Semenkurr shall be joined in Kajiado ELC No. 332 of 2017 as an interested party in his capacity as the legal representative of the estate of Nkikoora
  3. 3.Semenkurr is awarded the costs of the appeal
On appeal from
High Court of Kenya at Kajiado (Environment and Land Court)
Kajiado ELC Case No. 332 & 943 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal against the ruling of the Environment and Land Court (not expressly stated; appellate jurisdiction under Article 164 of the Constitution is implicit)

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, "Onesmus Sintole Saidimu v Sane Ole Saidimu Nkikoora & 5 others", Case Analysis (2021). Civil Appeal No. 223 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/1079/eng@2021-01-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.