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ELCDismissedNot stated in judgment (Mombasa ELC matter; related suit MSA ELC No. 4 of 2017)· [2018] KEELC 1623 (KLR)

Javan Lewa Muye v Shiva Enterprises Ltd & 2 others [2018] KEELC 1623 (KLR)

Environment and Land Court
26 September 2018
CYC. Yano
2,728 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Interested Party, Mbeyu Mwandaza Mwangoni, moved the Environment and Land Court at Mombasa by Notice of Motion dated 15th March 2017 seeking to be enjoined in a suit already concluded by consent judgment entered on 17th November 2015, a temporary injunction over PLOT NO. LR.1000/III/MN CR. NO.27426, setting aside of the decree and consequential orders, and consolidation of the suit with MSA ELC No. 4 of 2017 in which she is the plaintiff. She claimed to be the lawful allottee of the suit property since 13th November 1991 and in occupation with her family, asserting that the titles obtained by the Plaintiff and 1st Defendant were fraudulent or irregularly issued. The Plaintiff opposed, contending the consent judgment was not shown to be vitiated by illegality and that the applicant's allotment lapsed for non-payment, and that the two plots were different parcels. The 1st Defendant asserted he was the original allottee in 1987, took title in 1995, and that the property had been subdivided into three registered parcels following the consent judgment. Justice C. Yano framed three issues: joinder, setting aside the consent judgment, and consolidation. He held the joinder application came too late since judgment had been entered and the decree executed, rendering the court functus officio, and the applicant had a pending remedy in her own suit. Applying settled authority that a consent judgment has contractual effect, he found no fraud, collusion, misrepresentation, mistake or coercion proved. Consolidation was refused because nothing was pending in the concluded suit. The application was dismissed with costs on 26th September 2018.

Key legal issues

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01

Joinder of the applicant as a party after judgment

Holding

Joinder refused - the application came too late as judgment had been entered, decree extracted and executed

Reasoning

Under Order 1 Rule 10(2) a person whose presence is necessary may be added at any stage. However, a suit ordinarily ends when a decision is rendered and executed, at which point the court is functus officio. The applicant's rights over the suit property can be adequately agitated in ELC Case No. 4 of 2017 where she is the plaintiff, so joinder was unnecessary.

p. 3
02

Setting aside a consent judgment

Holding

Refused - threshold for interference with a consent judgment not met

Reasoning

Citing Board of Trustees NSSF v Michael Mwalo, Brooke Bond Liebig v Mallya and Flora Wasike v Destimo Wamboko, a consent judgment can only be set aside on grounds justifying rescission of a contract - fraud, collusion, misrepresentation or ignorance of material facts. The applicant proved none of these; moreover she was not left without a remedy since her own suit was pending.

p. 3
03

Consolidation with ELC Case No. 4 of 2017

Holding

Refused - consolidation cannot issue where one suit is concluded and nothing is pending

Reasoning

Courts may consolidate pending suits with the same or similar questions of law or fact under Order 11 Rule 3(1)(h). Here both parties agreed the suit was concluded on 17th November 2015, the decree was extracted and executed, and the suit property was subdivided into three registered parcels. With nothing pending, consolidation was impossible.

p. 3

Legal principles established

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  • A consent judgment has contractual effect and will only be set aside on grounds which would justify setting aside a contract, such as fraud, collusion, misrepresentation or ignorance of material facts
  • Once a court has rendered a decision which has been acted upon or executed, it becomes functus officio; an aggrieved party must pursue appeal or review
  • Consolidation of suits requires pending suits with the same or similar questions of law or fact, serving the overriding objective of expeditious and proportionate disposal

Court orders

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  1. 1.The Notice of Motion dated 15th March 2017 is dismissed
  2. 2.Costs of the application to the Plaintiff and 1st Defendant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63
  • Civil Procedure RulesOrder 40; Order 51; Order 1 Rule 10(2); Order 11 Rule 3(1)(h)
  • Environment and Land Court ActSection 19

Cases cited (6)

  • Joseph Okoyo –v- Edwin Dickson Wasunna
    (2014) eKLR
  • Korean United Church of Kenya & 3 Others –vs- Seng Ha Sang
    (2014) eKLR
  • Board of Trustees National Social Security Fund –vs Michael Mwalo
    (2015) eKLR
  • Brooke Bond Liebig (T) Limited –v- Mallya
    (1995) EA 266
  • Hirani –v- Kassam
    (1952) 19 EACA 131
  • Flora Wasike –v- Destimo Wamboko
    (1988) 1 KAR 625
Jurisdiction invoked
Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Order 40 & 51 of the Civil Procedure Rules and Section 19 of the Environment and Land Court Act

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, "Javan Lewa Muye v Shiva Enterprises Ltd & 2 others [2018] KEELC 1623 (KLR)", Case Analysis (2018). Not stated in judgment (Mombasa ELC matter; related suit MSA ELC No. 4 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1623/eng@2018-09-26

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