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ELCAllowedNyeri High Court Civil Case (suit concerning land parcel KIINE/THIGIRICHI/347); interlocutory Notice of Motion dated 5th July 2016· [2017] KEELC 2586 (KLR)

Wachira King’uru v Kariuki Ngundo 5 others [2017] KEELC 2586 (KLR)

High Court of Kenya
19 May 2017
BOB. N. Olao
1,629 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 set aside a consent judgment and land inhibition orders because the true landowners were never told about the case affecting their property.

What this practically means

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Executive summary

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This is a ruling by B.N. Olao J of the High Court at Nyeri dated 19th May 2017 on a Notice of Motion dated 5th July 2016 by Philip Muchungu, Joseph Gitau Kibuchi and Gabriel Muchoki Kibuchi seeking joinder as interested parties, stay of execution, and review and setting aside of a consent judgment recorded on 7th April 2016 in a land dispute over parcel KIINE/THIGIRICHI/347 between Wachira Kinguru (plaintiff) and Kariuki Ngundo and Stephen Mbaru Warui (defendants). The consent judgment, signed by counsel for the plaintiff and the 1st defendant, cancelled entries 5 to 11 on the register of the suit land and awarded costs of Kshs. 45,000 to the plaintiff. The applicants showed via Green Cards that the suit land had been sub-divided on 3rd September 2014 into parcels 2321 and 2322 registered in their names, which they had purchased in 2014 and developed. The court held they were entitled to be joined under Order 1 Rule 10(2) because orders had been made affecting their property without their involvement. It further found that the inhibition orders obtained from Bwonwonga J on 17th February 2015 over the applicants' parcels were procured through non-disclosure of material facts, amounting to fraud and collusion. Applying Brooke Bond Liebig v Mallya, the court allowed the application, enjoined the applicants, set aside the consent judgment and inhibition orders, allowed parties time to file and amend pleadings, and awarded the applicants costs against the plaintiff.

Key legal issues

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01

Joinder of persons whose property is affected by proceedings

Holding

The applicants were entitled to be enjoined because orders were made touching on their property without involving them.

Reasoning

The applicants produced a Green Card showing that parcel KIINE/THIGIRICHI/347 ceased to exist on 3rd September 2014 after sub-division, with the resultant parcels registered in their names. Since the consent judgment cancelled entries over land now owned by non-parties, their presence was necessary for the court to effectually and completely adjudicate on all issues under Order 1 Rule 10(2) of the Civil Procedure Rules.

p. 3
02

Setting aside the consent judgment and inhibition orders

Holding

The consent judgment of 7th April 2016 and the inhibition orders of 17th February 2015 were set aside, the latter having been obtained through non-disclosure of material facts.

Reasoning

By the time the consent was recorded, the suit land had ceased to exist and the resultant sub-divisions were owned by the applicants who were not parties. The plaintiff and 1st defendant had earlier recorded a consent before Bwonwonga J inhibiting the applicants' parcels without disclosing their ownership to the Judge, amounting to fraud and non-disclosure justifying setting aside under the Brooke Bond Liebig v Mallya principles.

p. 3

Legal principles established

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  • A consent judgment may be set aside on grounds of fraud, collusion or any reason which would enable the court to set aside an agreement.
  • Under Order 1 Rule 10(2), a person whose presence is necessary for the court to effectually and completely adjudicate on the issues must be joined to the suit.
  • Interim orders obtained without disclosure of material facts to the court are obtained through non-disclosure and cannot stand.

Court orders

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  1. 1.The applicants be enjoined in this suit
  2. 2.The consent judgment dated 7th April 2016, the orders of inhibition placed on land parcels No. KIINE/THIGIRICHI/2320, KIINE/THIGIRICHI/2321 and KIINE/THIGIRICHI/2322 on 17th February 2015, and all orders following the said consent judgment are set aside
  3. 3.The applicants to file and serve their pleadings within 30 days of the ruling; other parties at liberty to amend their pleadings within 15 days of service
  4. 4.The plaintiff to meet the applicants' costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 45 Rules 1, 2 and 3

Cases cited (1)

  • BROOKE BOND LIEBIG VS MALLYA
    1975 E.A 266
Jurisdiction invoked
Inherent and supervisory jurisdiction of the High Court; Civil Procedure Rules Order 1 Rule 10(2) and Order 45 Rules 1, 2 and 3

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, "Wachira King’uru v Kariuki Ngundo 5 others [2017] KEELC 2586 (KLR)", Case Analysis (2017). Nyeri High Court Civil Case (suit concerning land parcel KIINE/THIGIRICHI/347); interlocutory Notice of Motion dated 5th July 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2586/eng@2017-05-19

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