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ELCPartially AllowedPetition No. 14 of 2013 (ELC No. 205 of 2014)· [2015] KEELC 852 (KLR)

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)

Environment and Land Court of Kenya
18 November 2015
4,127 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Three applications were brought before the Nyeri Environment and Land Court seeking to set aside or vary consent orders issued on 19th/20th March 2014 by Ombwayo J, by which the petitioners in Nyeri HCC No. 212 of 2011 were enjoined to Petition No. 14 of 2013, that suit was stayed, Nairobi ELC No. 401 of 2013 was transferred to Nyeri to be determined together with the petition, and certain advocates were named to appear for the petitioners. The applicants, represented mainly by Mr. Wanyiri Kihoro, argued that no application for consolidation had been made, that they were condemned unheard, that the transfer to Kerugoya and consolidation created confusion, and that they were deprived of counsel of their choice. The respondents countered that the orders were consent orders, binding as contracts, that consolidation furthered the overriding objective under Section 3 of the Environment and Land Court Act, and that de-consolidation would cause duplication of evidence and conflicting judgments. The court noted the withdrawal of the application dated 22nd April 2014 so far as de-consolidation was concerned. Holding that the impugned orders were issued by consent of all parties and their advocates, the court applied Wasike v Wamboko and Jonathan Namulala Nyongesa and held that consent orders can only be set aside on grounds justifying setting aside a contract; a change of mind is not such a ground. Construing Order No. 8, the court held the suits were to be 'determined together' without either being a test suit, each party still to prove its case. The de-consolidation applications were dismissed with costs; the only success was a direction that the petition revert to its former reference number, Nyeri Petition No. 14 of 2014.

Key legal issues

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01

Whether the consent orders of 19th March 2014 could be set aside absent grounds justifying setting aside a contract

Holding

The court held the orders were consent orders, binding on the parties, and no case for setting them aside was made

Reasoning

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.

p. 7
02

Whether the order of 19th March 2014 consolidated the suits

Holding

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

Reasoning

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.

p. 8
03

Whether the petition should revert to its former petition reference number

Holding

The court directed the petition be allocated its earlier number, Nyeri Petition No. 14 of 2014

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 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. 2.The petition formerly bearing ELC No. 205 of 2014 be allocated its earlier reference number, Nyeri Petition No. 14 of 2014
  3. 3.All other prayers in the application dated 26th November 2014 denied
  4. 4.The respondents who defended the applications are awarded costs

Authorities

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Legislation

  • Environment and Land Court ActSection 3
  • Environment and Land Court ActSection 19(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)Overriding objective
  • Civil Procedure Rules

Cases cited (5)

  • Wasike vs. Wamboko
    (1988) KLR 429
  • Jonathan Namulala Nyongesa v. Multi Business Shooters Investors Ltd & 2 Others
    (2015) e KLR
  • Kenya Commercial Bank Vs. Specialized Engineering Company Ltd.
    [1982] KLR 485
  • Brooke Bond Leibig (T) Ltd. versus Maliya
    1975 [EA] 266
  • Samuel Wambugu Mwangi Vs. Othaya Boys High School
    Nyeri Civil Appeal No. 7 of 2014
Jurisdiction invoked
Environment and Land Court Act, 2011 (Section 3 and Section 19(3) invoked in submissions); original jurisdiction of the ELC

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, "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.