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ELCDismissedNot stated in the judgment· [2016] KEELC 759 (KLR)

George Martin Kenyatta & another v Julius Mokaya Moturi & 3 others [2016] KEELC 759 (KLR)

High Court of Kenya (sitting at Kisii)
3 June 2016
JMJ. M Mutungi
1,632 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A settlement signed by one plaintiff cannot end another plaintiff's land claim, so the Kisii High Court dismissed the attempt to adopt it as judgment.

What this practically means

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Executive summary

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The 1st and 2nd defendants moved the court by Notice of Motion dated 29th July 2013 seeking adoption of a consent judgment dated 18th July 2013 as the judgment of the court, contending that the consent, recorded between the 2nd plaintiff and the 1st and 2nd defendants, collapsed the substance of the 1st plaintiff's claim and fully settled the suit. The consent required the defendants to pay the 2nd plaintiff Kshs. 1,800,000 in full and final settlement of his claim over the purchase of West Mugirango/Siamani/6454. The 1st plaintiff opposed, asserting he was not party to the consent, that it was obtained by omission, mistake and/or fraud, and that his claim against the 3rd defendant (the land registrar) for unlawfully cancelling his title to parcel 6454, a subdivision of his father's parcel 3585, remained unresolved. The court held that the consent, signed on behalf of the 2nd plaintiff only, could not bind the 1st plaintiff who was not a party to it. It further found the consent did not involve the 3rd defendant and did not dispose of the issues of the lawfulness of the subdivision or the rectification of the register to restore the cancelled title. The consent settled matters only between the 2nd plaintiff and the defendants and could form part of the evidence at trial but not subsume the 1st plaintiff's issues. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether a consent between some parties to a suit can be adopted as judgment disposing of the whole suit

Holding

The consent dated 18th July 2013 could not bind the 1st plaintiff who was not a party to it, and it did not address the issues between the 1st plaintiff and the 3rd defendant; the application to adopt it as judgment was dismissed.

Reasoning

The consent was signed on behalf of the 2nd plaintiff only, even though G. M Nyambati & Co. Advocates acted for both plaintiffs. The consent addressed only the 2nd plaintiff's claim based on the sale agreement. It did not involve the 3rd defendant or address the 1st plaintiff's claim that his title to parcel 6454 was unlawfully cancelled, nor the lawfulness of the subdivision creating parcel 6454. Those issues remain live and the 1st plaintiff has a right to be heard on them.

p. 3

Legal principles established

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  • A consent agreement cannot bind a party who was not party to it
  • The court would be slow to endorse a consent as a judgment when not all parties to the suit are parties to the agreement
  • A consent order binding on parties cannot be set aside or varied except on recognized grounds such as fraud or collusion

Court orders

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  1. 1.The applicants' application dated 29th July 2013 is dismissed
  2. 2.Costs of the application to be in the cause
Jurisdiction invoked
Civil Procedure Act, sections 1A, 1B, 3, 3A and 63(e); Civil Procedure Rules Order 2 Rule 15(a)(c)(d), Order 25 Rule 1, 2, Order 51 Rules 1, 2, 3 and 13(2)

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, "George Martin Kenyatta & another v Julius Mokaya Moturi & 3 others [2016] KEELC 759 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/759/eng@2016-06-03

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