Michael Kibui & 2 others v Impressa Construzioni Giuseppe Maltauro S.P.A & 2 others [2016] KEELC 108 (KLR)
The bottom line
#A Kenyan court refused to undo a land compensation settlement, confirming that agreed consent judgments bind parties just like a signed contract.
What this practically means
#Executive summary
#Key legal issues
#Whether a consent judgment can be set aside for misapprehension of material facts
The consent cannot be set aside; the applicant failed to demonstrate misapprehension of material facts, and the supporting affidavit was too sketchy to establish the ground
The court reviewed the settled law from Hirani v Kassam, Brooke Bond Liebig v Mallya, Wasike v Wamboko and KBC v Specialised Engineering that consent orders have contractual effect and may only be set aside on grounds such as fraud, collusion, agreement contrary to public policy, or consent given without sufficient material facts or in misapprehension. The supporting affidavit was found sketchy, failing to show what facts were misapprehended. Negotiations involved three senior advocates with no evidence of fraud or collusion.
Whether the consent was procured by fraud or collusion
Allegations of fraud and collusion raised by the 2nd respondent were merely stated and not proved; no advocate was shown to have engaged in fraud or collusion
Fraud and collusion were raised in the 2nd respondent's replying affidavit but only asserted, not proved. The consent that emerged from negotiations beginning on 14.7.2014 and concluded on 22.9.2014 was negotiated by three senior advocates, and there was no indication any of them engaged in fraud or collusion. The applicant also placed no evidence of fraud, collusion or misrepresentation showing illegality in the consent.
Whether the court has jurisdiction over claims for compensation of land through compulsory acquisition
The court has jurisdiction; section 13 of the Environment and Land Court Act expressly covers disputes relating to compulsory acquisition of land
The applicant argued the consent was based on claims outside the court's jurisdiction, including compensation for compulsory acquisition. The court held that section 13 of the Environment and Land Court Act, read with Article 162(2)(b) of the Constitution, confers power to hear and determine disputes relating to, among other things, compulsory acquisition of land. The dispute therefore falls squarely within the court's jurisdiction.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract
- A duly instructed advocate has implied general authority to compromise and settle, and limitations of that authority do not avail the client against the other side unless brought to their notice
- The Environment and Land Court has jurisdiction over disputes relating to compulsory acquisition of land under section 13 of the Environment and Land Court Act
Court orders
#- 1.The Notice of Motion by the 1st respondent seeking to set aside the consents of 22.9.2014 and 2nd March 2015 is dismissed
- 2.Costs of the application awarded against the applicant
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution; section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael Kibui & 2 others v Impressa Construzioni Giuseppe Maltauro S.P.A & 2 others [2016] KEELC 108 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/108/eng@2016-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.