Dama Charo v Municipal Council of Mombasa Taib Alibajaber & another [2018] KEELC 13 (KLR)
The bottom line
#A Kenyan court refused to undo a signed land settlement because the applicant could not prove fraud, coercion or mistake when signing it.
What this practically means
#Executive summary
#Key legal issues
#Threshold for setting aside a consent judgment/order
The applicant failed to meet the contractual vitiating grounds (fraud, misrepresentation, mistake, duress) required to disturb the consent order
Relying on Flora N. Wasike v Destnio Wamboko and Brooke Bond Liebig v Mallya, the court held that interference with a consent judgment requires grounds analogous to rescinding a contract. The applicant alleged duress by her son and misrepresentation but gave no particulars, produced no affidavit from the witnessing advocate, and blamed no one connected with the respondents. Her illness in April 2017 postdated the 15th February 2017 signing, and coercion was not proved.
Whether the applicant's presence in court on 4th May 2017 was necessary for adoption of the consent
It was not mandatory; the deed of settlement and consent letter had been signed and filed on 1st March 2017, so the court's role was merely to endorse them
The court noted both documents were filed on 1st March 2017, well before the 4th May 2017 mention. The court's role was ministerial endorsement rather than a contested hearing, so the applicant's hospitalisation and absence on the adoption date did not undermine the validity of the consent order.
Burden of proof regarding alleged illness and coercion
The applicant bore the evidential burden and did not discharge it; hospital records showed admission in April 2017, not February when the deed was signed
Sections 107–109 of the Evidence Act place the burden on the party asserting facts. The discharge summary showed admission on 9th April 2017 with cough, chest pain and night sweats, and no indication of prior illness, so it did not corroborate critical illness on 15th February 2017. Two witnesses attested her signature and no affidavit from the witnessing advocate was produced.
Legal principles established
#- A consent order can only be set aside on grounds which would justify setting aside a contract entered into with knowledge of material matters by legally competent persons
- The burden of proof lies on the party who asserts facts the court is asked to believe (sections 107–109, Evidence Act)
Court orders
#- 1.The application dated 23rd June 2017 is dismissed
- 2.Each party to bear their respective costs of the application
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63(e) and 80 of the Civil Procedure Act; Order 22 rule 22(1), Order 45 and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dama Charo v Municipal Council of Mombasa Taib Alibajaber & another [2018] KEELC 13 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/13/eng@2018-03-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.