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ELCOtherChamber Summons dated 21st January, 2015 (three applications in the main suit)· [2017] KEELC 3495 (KLR)

Elijah Itugu Kabiru & 22 others v Kanguru Gachoki & 7 others [2017] KEELC 3495 (KLR)

High Court of Kenya
15 February 2017
LWL N Waithaka
586 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 struck out three applications because a consent order between the parties remained binding and was never set aside.

What this practically means

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Executive summary

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The court dealt with three Chamber Summons dated 21st January 2015 arising in a suit before the Nyeri High Court. The first application, by Tabitha Muthoni Gichobi, sought enlargement of time to substitute the deceased 7th plaintiff (Gichobi Kaara, who died on 20th May 2003) and to revive his suit; she held a grant confirmed in Embu High Court Succession Cause No 403 of 2008. The second, by Beatrice Waruguru, sought similar relief for the deceased 1st plaintiff (Elijah Itugu Kabiru, who died on 10th November 2004), pursuant to a grant in Kerugoya High Court Succession Cause No 453 of 2014. The third application sought substitution of the 10th plaintiff with Susan Muthoni Mwai and Samuel Kinyua Mwai, holders of letters of administration in Kerugoya High Court Succession Cause No 452 of 2014. The court noted that on an earlier mention before Ombwayo J, counsel for the plaintiffs had, without objection and by consent, undertaken to proceed only with the surviving plaintiffs and to withdraw the suit as against the deceased plaintiffs, and an order was recorded accordingly. Waithaka J held that this consent order remained binding and had never been reviewed or set aside, applying the Court of Appeal decision in Board of Trustees National Social Security Fund v Micheal Mwalo on the binding nature of consent orders. All three applications were struck out, with no order on costs since they were undefended.

Key legal issues

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01

Effect of a subsisting consent order on subsequent substitution/revival applications

Holding

The consent order recorded before Ombwayo J on 25th February 2014 - that the surviving plaintiffs proceed and the suit as against deceased plaintiffs be withdrawn - remained binding, so the three applications had to fail

Reasoning

The court held that an order of the court is binding until a party applies for it to be reviewed or set aside. Relying on the Board of Trustees National Social Security Fund v Micheal Mwalo decision, consent orders made in the presence and with the consent of counsel bind the parties and cannot be discharged except for fraud, collusion, agreement contrary to public policy, or lack of sufficient material facts. The applicants had not sought to review or set aside the consent order, so the substitution and revival applications were untenable and were struck out.

p. 3

Legal principles established

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  • A consent order made in the presence and with the consent of counsel is binding and cannot be varied or discharged unless obtained by fraud or collusion, or for reasons that would enable the court to set aside an agreement, and it binds the parties until reviewed or set aside

Court orders

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  1. 1.All three applications (Chamber Summons dated 21st January, 2015) struck out
  2. 2.No order on costs, the applications having been undefended

Authorities

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Cases cited (1)

  • Board of Trustees National Social Security Fund v Micheal Mwalo
    [2015] eKLR
Jurisdiction invoked
Inherent powers of the court on applications by Chamber Summons for enlargement of time, substitution of deceased plaintiffs and revival of suits

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, "Elijah Itugu Kabiru & 22 others v Kanguru Gachoki & 7 others [2017] KEELC 3495 (KLR)", Case Analysis (2017). Chamber Summons dated 21st January, 2015 (three applications in the main suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3495/eng@2017-02-15

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