Githinji & 400 others v Attorney General & 5 others; Mureithi & 2 others (Affected Party) (All Suing for and on Behalf of Murathimi Clan) (Environment & Land Case 205 of 2013) [2015] KEELC 852 (KLR)
The bottom line
#The Nyeri Environment and Land Court ruled that parties cannot undo a court order they consented to, unless there are grounds like those for cancelling a contract.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent orders of 19th March 2014 could be set aside absent grounds justifying setting aside a contract
The court held the orders were consent orders, binding on the parties, and no case for setting them aside was made
The record showed the impugned orders were issued by consent of all parties and their advocates. Counsel for the applicants did not deny participating in the proceedings. Following Wasike v Wamboko and Jonathan Namulala Nyongesa, consent orders have contractual effect and can only be varied on grounds justifying variation of a contract or by fresh consent. A change of mind alone is insufficient; any variance with the agreement should have been raised by way of rectification.
Whether the order of 19th March 2014 consolidated the suits
Order No. 8 directed that ELC No. 401 of 2013 be transferred to Nyeri 'to be determined together with' Petition No. 14 of 2013; this means joint hearing, not that one suit becomes a test suit
The court construed the phrase 'to be determined together' to mean issues of law and fact in both suits will be considered together without either being a test suit. Had a test suit been intended, an order like Order No. 2 (staying HCC No. 212 of 2011 pending Petition No. 14 of 2013) would have been made. Each set of parties remains bound to prove its respective case.
Whether the petition should revert to its former petition reference number
The court directed the petition be allocated its earlier number, Nyeri Petition No. 14 of 2014
The court accepted that since the matter was framed as a petition and the numbering issue did not go to the root of the matter, the petition should regain its earlier reference number rather than an ELC number.
Legal principles established
#- A consent order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, or if certain conditions remain unfulfilled
- A change of mind alone is not a ground for setting aside or varying a consent order
- No formal application was needed for the court to issue directions on management of suits before it, where the parties consented
- Suits ordered 'to be determined together' need not have one suit treated as a test suit; each party must still prove its own case
Court orders
#- 1.The applications in so far as they seek variation of the orders issued on 19th March 2014 are dismissed with costs to the respondents
- 2.The petition formerly bearing ELC No. 205 of 2014 be allocated its earlier reference number, Nyeri Petition No. 14 of 2014
- 3.All other prayers in the application dated 26th November 2014 denied
- 4.The respondents who defended the applications are awarded costs
- Jurisdiction invoked
- Environment and Land Court Act, 2011 (Section 3 and Section 19(3) invoked in submissions); original jurisdiction of the ELC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Githinji & 400 others v Attorney General & 5 others; Mureithi & 2 others (Affected Party) (All Suing for and on Behalf of Murathimi Clan) (Environment & Land Case 205 of 2013) [2015] KEELC 852 (KLR)", Case Analysis (2015). Petition No. 14 of 2013 (ELC No. 205 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/852/eng@2015-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.