Mariakani Estate Welfare Association v Nairobi County Government & another Interested Party Local Authorities Provident Fund & 5 others [2018] KEELC 352 (KLR)
The bottom line
#A Kenyan court refused to undo a land settlement deal, ruling that consent orders are binding even after a change of government.
What this practically means
#Executive summary
#Key legal issues
#Whether the Association's application met the criteria for setting aside a consent order
It did not; no evidence was placed before the court to impeach the consent order
The applicants did not contest that the officials in office when the suit was filed were duly authorized. The certified extract of officials was uncontested, and those officials, through their advocates, asserted the consent was validly recorded after negotiations. The court found no evidence of fraud, collusion or lack of instructions to justify impeachment of the consent order.
Whether the County Government's application met the criteria for setting aside a consent order
It did not; a change of political administration is not a ground for setting aside a consent order properly recorded
The court examined the debt swap agreements, Council resolutions, approvals, and the acting County Secretary's affidavit affirming there was no fraud or collusion. The subsequent administration's wish to disengage from its predecessors' commitments cannot impeach a properly recorded consent. The application was found to be a ploy to escape pension obligations.
Whether the court should determine the locus standi of the Association
The court declined to rest its determination on locus because the issue was not raised by the parties when the suit was initiated or when the consent was recorded
The court raised the issue suo motto at submissions stage but noted the impugned consent order fully settled the suit without locus being raised. Had it been raised by a party, the court would have made a definitive pronouncement. The only key issue was therefore the criteria for setting aside a consent order.
Legal principles established
#- A consent order or judgment has contractual effect and can only be set aside on grounds which would justify setting aside a contract, namely fraud, collusion, agreement contrary to policy of the court, or where the consent was given without sufficient material facts or in misapprehension of them.
- A duly instructed advocate has implied general authority to compromise and settle an action, and a client cannot avail himself of any limitation of that authority unless it was brought to the notice of the other side.
Court orders
#- 1.The Notice of Motion dated 10/10/2016 is dismissed for lack of merit
- 2.The Notice of Motion dated 20/7/2018 is dismissed for lack of merit
- 3.The respective applicants shall bear the costs of the applications
- Jurisdiction invoked
- Original jurisdiction under the Environment and Land Court Act to determine disputes relating to land (no specific provision stated in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mariakani Estate Welfare Association v Nairobi County Government & another Interested Party Local Authorities Provident Fund & 5 others [2018] KEELC 352 (KLR)", Case Analysis (2018). Not stated in the judgment (two Notices of Motion dated 10/10/2016 and 20/7/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/352/eng@2018-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.