Livingstone Kunini Ntutu v County Council of Narok & 2 others [2014] KEELC 437 (KLR)
The bottom line
#Kenya's High Court set aside a 2002 consent judgment over land near the Maasai Mara, ruling that a title obtained unconstitutionally cannot be protected by settlement.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent judgment could be set aside for error on the face of the record
The participation of other parties in the partial consent was not mandatory, but the decree of 24th November 2005 bore fatal errors on its face and was defective; the alleged irregularities in the council resolution were matters for a substantive application, not review
The court found that since the consent settled the suit only as between the Plaintiff and 1st Defendant, the other parties' participation was not required. However, the decree bore three different dates and referred to two consents and a notice of discontinuance, making it defective. Res judicata did not apply since Khamoni J. made no substantive findings on the resolutions, and the regularity of the resolutions could not be raised as an error on the face of the record.
Whether there was discovery of new and important matter warranting review
No - the documents relied on post-dated the consent judgment and could not qualify as new evidence under Order 45 Rule 1
The letter of 23rd April 2013 from the Director of Prosecutions on the forged signature, and Legal Notice No. 2934 of 2010 cancelling the title, both arose after the decree. Order 45 Rule 1 requires that the new matter existed at the time of the decree and was not within the applicant's knowledge or producible then. Post-decree facts do not qualify as discovery of new matter.
Whether there was other sufficient reason to set aside the consent judgment
Yes - the evidence raised serious, uncontroverted questions of unconstitutionality and illegality in the excision, adjudication and registration of the suit property, making it against public policy to compromise the suit
The court found the suit property was not part of the Talek excision under Legal Notice 412 of 1992, that only 154 parcels were adjudicated while the suit property was a purported 155th parcel, and that a forged Chief Land Registrar's letter was used. The constitutional trust provisions (section 115/116 of the repealed Constitution) and section 7 of the Wildlife Act conditioned registration, and these were not met. It would be in the public interest that the legality of the title be determined conclusively.
Whether there was unreasonable delay in bringing the application
No - the applicant's hands were tied by a stay order issued on 6th November 2002 pending determination of the judicial review application decided by Khamoni J. on 8th May 2009
Although the application was filed in March 2009, seven years after the consent, a stay of the consent decision and of any proceedings founded thereon had been granted by Rimita J. in Nairobi HC Misc. Application No. 1271 of 2002, which was only determined on 8th May 2009. The applicant was therefore not culpable for the delay, and Article 159(2)(d) required substantive determination.
Legal principles established
#- A consent judgment is a compromise of a suit; if it disposes of an entire suit involving multiple parties all parties must consent, but a partial settlement need not involve all parties
- A court may review a consent judgment on the same grounds that would justify varying or rescinding a contract between the parties
- New evidence for review must have been in existence at the time the decree was passed and not producible with due diligence; post-decree events do not qualify
- An error apparent on the face of the record must be obvious and patent, not established by long drawn reasoning
- Indefeasibility of first registration under the repealed Registered Land Act and the Land Adjudication Act cannot be relied upon where the registration was subject to constitutional conditions that were not met, as those statutes were subject to the Constitution
Court orders
#- 1.The consent judgment between the 1st Defendant and Plaintiff recorded on 15th May 2002 and the decree issued on 24th November 2005, together with all consequential decrees and actions arising therefrom, are set aside and the suit shall proceed to full hearing
- 2.The 1st Defendant is granted leave to file and serve a Defence to the Plaintiff's claim within 30 days of the date of the ruling
- 3.Costs of the 1st Defendant's Notice of Motion dated 12th March 2009 shall be in the cause
- 4.The outstanding prayer for stay of execution of the decree issued on 24th November 2005 was overtaken by the orders given
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Livingstone Kunini Ntutu v County Council of Narok & 2 others [2014] KEELC 437 (KLR)", Case Analysis (2014). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/437/eng@2014-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.