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ELCPartially AllowedHCCC No. 162 of 2007 (Chamber Summons dated 12th January 2010)· [2015] KEELC 108 (KLR)

Board of Governor Changamwe Secondary School v Commissioner of Lands & 2 others [2015] KEELC 108 (KLR)

High Court of Kenya
30 October 2015
AOA. Omollo
2,253 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court set aside a consent judgment it found was procured through collusion and hidden information, and let an affected landowner join the suit.

What this practically means

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Executive summary

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Turf Developers Limited, the registered owner of Plot No. MN/VI/3458, applied by chamber summons dated 12th January 2010 for the decree of 9th December 2009 (a consent judgment) to be set aside, to be joined as a defendant, and for an interim injunction restraining the plaintiff from dealing with the suit property. The applicant asserted that the plaintiff and defendants had fraudulently and collusively entered the consent without disclosing the existence of MBS HCCC No. 485 of 2000 involving the same parties and subject matter, and despite ongoing settlement correspondence. The plaintiff opposed by preliminary objection arguing the court was functus officio and that under Section 24 of the Registration of Titles Act the applicant could only sue for damages; the defendants filed grounds of opposition. The court framed two issues. First, it held the Court was not functus officio: when the application was filed prayers (a) and (b) remained pending, the consent having settled only prayer (c), and the plaintiff's notice of withdrawal of 16th December 2014 could not defeat the applicant's pending joinder application. Second, applying Flora Wasike v Wamboko, Hirani v Kassam and Brook Bond Liebig v Mallya, the court found the consent was clouded with collusion and non-disclosure of material facts and set it aside. The application was allowed in terms of prayers 2, 3 and 5; prayer 4 (the injunction) was refused as not proved.

Key legal issues

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01

Whether the Court was functus officio after the consent decree, i.e. whether there remained a suit for the applicant to join

Holding

The Court was not functus officio; the consent order only partially settled the suit and the belated notice of withdrawal could not defeat the applicant's pending joinder application.

Reasoning

When the application was filed, prayers (a) and (b) of the plaint remained pending because the consent order had allowed only prayer (c). The plaintiff's notice of withdrawal was filed four years after the joinder application, was not endorsed as an order of the Court, and could not be used to defeat the applicant's accrued right to be joined. If the consent judgment were set aside, disputes would remain to be determined.

p. 3
02

Whether the consent judgment of 9th December 2009 could be set aside

Holding

Yes - the consent was reached in collusion between the plaintiff and the defendants, with misrepresentation and non-disclosure of material facts, namely the existence of HCCC No. 485 of 2000 involving the same parties and subject matter.

Reasoning

Applying Flora Wasike v Wamboko, Hirani v Kassam and Brook Bond Liebig v Mallya, a consent judgment may be set aside for fraud, collusion or misrepresentation/non-disclosure of material facts. The parties to the consent were aware of the applicant's interest in the suit property because of HCCC 485/2000 and the ongoing settlement negotiations. The applicant's failure to join the suit did not absolve the respondents from wrongdoing.

p. 4

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, or if certain conditions remain to be fulfilled which are not.
  • A consent judgment may be set aside if obtained by fraud or collusion, by agreement contrary to the policy of the Court, when given without sufficient material facts or by misrepresentation, or for any reason which would enable the Court to set aside an agreement.
  • A notice of withdrawal filed after an application for joinder has been made cannot be used to defeat the rights of an applicant who already moved the Court to join the suit.

Court orders

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  1. 1.The decree passed on 9th December 2009 and all consequential orders set aside
  2. 2.Turf Developers Limited joined as a Defendant to the suit
  3. 3.Costs of the application provided for (prayer 5 allowed)
  4. 4.Prayer 4 (interim restraining order over Plot No. MN/VI/3458) refused as not proved

Authorities

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Legislation

  • Registration of Titles ActSection 24 (Cap 281)
  • Civil Procedure ActSection 3A; Section 80
  • Civil Procedure Rules, 2010Order 1 rule 10(2)

Cases cited (5)

  • Flora Wasike vs Wamboko
    (1988) 1 KLR 429
  • Purcell vs F. C Trigell Ltd
    (1970) 2 All ER 671
  • Hirani vs Kassam
    (1952) 19 EACA 131
  • Brook Bond i.e big vs Mallya
    (1975) EA
  • Evan Gachoki Njuki & 3 others vs Wilson Njuki Karukuma
    (2008) eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act and Order 1 Rule 10(2) of the Civil Procedure Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Board of Governor Changamwe Secondary School v Commissioner of Lands & 2 others [2015] KEELC 108 (KLR)", Case Analysis (2015). HCCC No. 162 of 2007 (Chamber Summons dated 12th January 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/108/eng@2015-10-30

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