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ELCAllowedNot stated in the extract (application dated 21st January 2016)· [2016] KEELC 409 (KLR)

Kore Forests Limited v Attorney General & 9 others [2016] KEELC 409 (KLR)

High Court of Kenya
26 October 2016
2,980 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 confirmed that even people who were never party to a lawsuit can apply to have court orders affecting their property reviewed and set aside.

What this practically means

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Executive summary

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Sominam Limited, the registered owner of Kwale/Msambweni 'A'/1707 since purchasing it at a public auction in 1986, applied by notice of motion dated 21st January 2016 under section 80 of the Civil Procedure Act, Order 45 Rule 1 and Order 40 Rule 1 of the Civil Procedure Rules for review and setting aside of an order issued on 9th December 2015 by which the court recorded a consent registering the property in the names of the interested parties. Sominam, which was never a party to the suit, alleged a chain of fraudulent registrations of the property from 2010 onwards following purported decrees in Nairobi HCCC 916 of 2007 (OS) and Misc. High Court Cause 807 of 2011, both of which it had successfully impugned. Kore Forests Limited filed a preliminary objection arguing that the applicant was not a party and had not sought joinder, and that the court, having recorded the consent, was functus officio. The court framed three issues and held: first, that 'any person who considers himself aggrieved' in section 80 includes a non-party with a direct interest, following Ngororo vs Ndutha, and the applicant's uncontroverted evidence established sufficient cause; second, that the court was not functus officio since the applicant sought review, not a retrial, distinguishing the Telkom case; and third, that the consent-versus-judgment distinction was immaterial on review, and the record disclosed fraud and collusion because the consent was signed without the interested parties and bestowed the applicant's title despite known interest. The application was allowed, the consent order of 9th December 2015 and consequential orders were set aside, the applicant was joined as 7th defendant, and costs were made to abide the outcome of the main suit.

Key legal issues

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01

Whether a non-party may apply for review

Holding

Yes; section 80 and Order 45 use 'any person who considers himself aggrieved', which includes a non-party with a direct interest. The applicant's uncontroverted evidence of ownership of the suit property established sufficient cause.

Reasoning

The court noted section 80 opens with 'any person who considers himself aggrieved' and Order 45 uses similar words. Relying on Ngororo vs Ndutha, it held 'any person' is not 'any party'. The applicant's facts about acquisition of Kwale/Msambweni A/1707 were uncontroverted by any party, including the plaintiff, and were supported by documents, showing the applicant was aggrieved.

p. 5
02

Whether the court was functus officio

Holding

No. The applicant was not seeking to re-open or re-try the matter but to review the decree, which section 80 expressly permits.

Reasoning

The plaintiff relied on the Telkom case, where parties wanted to re-open a determined matter by adducing further evidence. The court distinguished it: the applicant here sought review or setting aside of the decree, not a retrial. Since the statute creates review of decrees and orders, a review application is not barred by functus officio.

p. 5
03

Whether a consent order can be set aside by an outsider to the consent

Holding

The distinction between a contested judgment and a consent decree is immaterial on review; in any event the consent was not signed by the interested parties and the record revealed fraud/collusion.

Reasoning

The court held the core of the application was whether the grounds for review were met, not grounds for setting aside a consent judgment. It further observed the consent was signed by the plaintiff and defendants but not the interested parties, who nonetheless benefited, which the court found to be fraud/collusion apparent from the documents.

p. 5

Legal principles established

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  • A person who is not a party to a suit but whose direct interest is affected by a judgment or order is entitled to apply for review under section 80 of the Civil Procedure Act.
  • A court entertaining a review application under section 80 is not functus officio; review is the statutory exception to the finality of decisions.

Court orders

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  1. 1.The order issued on 9th December 2015 (consent order) and all consequential orders emanating from it be reviewed and set aside.
  2. 2.The applicant (Sominam Limited) be joined as the 7th defendant to the proceedings and the matter proceed with its participation.
  3. 3.Costs of the application abide the outcome of the main suit.

Authorities

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Legislation

  • Civil Procedure Actsection 80
  • Civil Procedure RulesOrder 45 Rule 1
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (10)

  • Ngororo vs Ndutha & Another
    (1994) KLR 402
  • John Ochanda & Others vs Telkom (K) LTD
    NBI HCC 216 of 2007
  • R vs Registrar of Societies
  • Belleview Development Co vs Vinayak Builders & Another
    NBI HCC 571 of 2011
  • Dhanji Jadra Ramji vs Commissioner of Prisons & A.G
    Nakuru HCC No 275 of 1998
  • The Public Trustee vs Ahmed Omar Mohamed & Others
    MSA HCC 95 of 2000
  • Chandler vs Alberta Associates of Architects
    (1989) 2 S.C.R 848
  • In re St Nazaire Co.
    (1879) 12 Ch D 88
  • Mohamed Said Dosa & others v Peter Gitau Kabiru & others
    Nairobi HCCC 916 of 2007 (OS)
  • Mwanajuma Ali Buwa and Twalib Akida Rugunda v Saddiq Ghalia
    Misc. High Court Cause No. 807 of 2011
Jurisdiction invoked
Section 80 of the Civil Procedure Act, Order 45 Rule 1 and Order 40 Rule 1 of the Civil Procedure Rules and the inherent power of the Court

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, "Kore Forests Limited v Attorney General & 9 others [2016] KEELC 409 (KLR)", Case Analysis (2016). Not stated in the extract (application dated 21st January 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/409/eng@2016-10-26

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