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ELCPartially AllowedNot stated in the judgment as provided· [2018] KEELC 633 (KLR)

Patrick Kipketer Kirui v Joseph Koech; Joel Kimutai Bosek & another (Interested Parties) [2018] KEELC 633 (KLR)

Environment and Land Court
8 November 2018
1,856 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court refused to undo a settlement order because the party alleging his lawyer lacked authority produced no evidence, but allowed him to amend his defence.

What this practically means

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Executive summary

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By Notice of Motion dated 27th June 2018, the defendant sought to set aside consent orders made on 3rd May 2018, which had enjoined the Interested Parties and restrained both plaintiff and defendant from interfering with their possession and occupation of L.R. Nakuru/Olenguruone/Amalo/108. The defendant also sought an injunction protecting the 4 acres he claimed on that property, a police compliance order, and leave to amend his statement of defence. He contended that his former advocate entered the consent of 3rd May 2018 without his instructions and without a practising certificate. The plaintiff opposed through a preliminary objection that the application was omnibus and suffered misjoinder of causes of action; the Interested Parties called it an abuse of process. The court first dismissed the preliminary objection, holding it did not raise a pure point of law and touched on discretionary matters. On the merits, applying Mukisa Biscuit, S M N v Z M S and Flora N. Wasike v Destimo Wamboko, the court held that consent orders have contractual effect and can only be set aside on grounds justifying rescission of a contract. The allegation of a missing practising certificate was unsupported by evidence; a preliminary objection is not evidence, and grave imputations against an advocate demand cogent proof. Setting aside was therefore refused, as was the injunction, which would conflict with the subsisting consent orders. However, applying Coffee Board of Kenya v Thika Coffee Mills, leave to amend the defence was granted as no prejudice was shown. The preliminary objection and prayers 2, 4 and 6 were dismissed; leave to amend was granted, with timeframes for filing the amended defence and any replies, and costs in the cause.

Key legal issues

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01

Whether the preliminary objection raised a pure point of law

Holding

It did not; it concerned omnibus drafting and misjoinder, which are discretionary matters properly raised as grounds of opposition

Reasoning

Applying Mukisa Biscuit, the court held the objection failed to raise a point of law capable of disposing of the application. No authority was cited barring such an application, and the matters raised involved discretion, so the objection was dismissed.

p. 2
02

Whether consent orders of 3rd May 2018 could be set aside on the ground of counsel's alleged lack of a practising certificate

Holding

They could not; no evidence of the missing practising certificate was adduced despite the availability of proof from the Law Society

Reasoning

The court held that setting aside consent orders requires grounds justifying rescission of a contract. Allegations of fraud or want of authority are grave and require cogent evidence. A preliminary objection is not evidence and was never determined, so the allegation remained unsupported.

p. 2
03

Whether leave to amend the statement of defence should be granted

Holding

Yes; no prejudice to the plaintiff or interested parties was shown

Reasoning

Guided by Coffee Board of Kenya v Thika Coffee Mills, the court applied the rule that pre-judgment amendments should be allowed unless injustice not compensable by costs would result. Neither the plaintiff nor the interested parties demonstrated any prejudice, so leave was granted.

p. 3

Legal principles established

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  • A valid preliminary objection must be on a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • Allegations of fraud or lack of authority against an advocate entering a consent must be proved with cogent evidence; a preliminary objection is not evidence
  • Leave to amend pleadings before judgment should be granted unless it would occasion injustice to the opposite party not compensable by costs

Court orders

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  1. 1.The Notice of Preliminary Objection dated 2nd July 2018 is dismissed
  2. 2.Prayers 2, 4 and 6 of Notice of Motion dated 27th June 2018 are dismissed
  3. 3.Leave is granted to the defendant to amend his statement of defence, to be filed and served within seven (7) days of delivery of the ruling
  4. 4.The Plaintiff and the Interested Parties to file and serve reply to the amended defence, if need be, within fourteen (14) days of service
  5. 5.Costs in the cause

Authorities

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Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • S M N v Z M S & 3 others
    [2017] eKLR
  • Flora N. Wasike vs Destimo Wamboko
    [1988] eKLR
  • J M Mwakio vs Kenya Commercial Bank Ltd
    Civil Appeals 28 of 1982 and 69 of 1983
  • Coffee Board of Kenya v Thika Coffee Mills Limited & 2 others
    [2014] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over L.R. Nakuru/Olenguruone/Amalo/108 (no specific provision invoked in the judgment)

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, "Patrick Kipketer Kirui v Joseph Koech; Joel Kimutai Bosek & another (Interested Parties) [2018] KEELC 633 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/633/eng@2018-11-08

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