Patrick Kipketer Kirui v Joseph Koech; Joel Kimutai Bosek & another (Interested Parties) [2018] KEELC 633 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection raised a pure point of law
It did not; it concerned omnibus drafting and misjoinder, which are discretionary matters properly raised as grounds of opposition
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.
Whether consent orders of 3rd May 2018 could be set aside on the ground of counsel's alleged lack of a practising certificate
They could not; no evidence of the missing practising certificate was adduced despite the availability of proof from the Law Society
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.
Whether leave to amend the statement of defence should be granted
Yes; no prejudice to the plaintiff or interested parties was shown
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 2nd July 2018 is dismissed
- 2.Prayers 2, 4 and 6 of Notice of Motion dated 27th June 2018 are dismissed
- 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.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.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.