Jackson Njenga Njoroge v Royal Credit Limited & another [2018] KEELC 3166 (KLR)
The bottom line
#A Kenyan court threw out a land deal consent order after two parties secretly sidelined a woman with a claim on the property, sending the dispute back to Nakuru.
What this practically means
#Executive summary
#Key legal issues
#Admissibility of the applicant's affidavit
The scanned, undated affidavit whose jurat did not state the date and place of swearing failed to comply with section 5 of the Oaths and Statutory Declarations Act, and the defects were substantive, not curable under Article 159 of the Constitution; the affidavit and its annexures were struck out and expunged
Section 5 of the Oaths and Statutory Declarations Act (Cap 15) requires a commissioner for oaths to state truly in the jurat the place and date when the affidavit is taken. The affidavit before court was a scanned copy, undated in the jurat, with the notary's seal appearing on a separate acknowledgment. Once objections were raised, the applicant made no effort to tender the original or file a compliant affidavit. The defects were therefore beyond procedural technicalities and the affidavit was inadmissible.
Whether the applicant was a necessary party and whether the consent order should be set aside
The applicant was a necessary party who should have been enjoined and served; the consent order was procured through collusion between the plaintiff and the defendant who concealed material facts, and was wholly vacated together with consequential register entries
The plaintiff and defendant crafted a consent that authorized execution of the renewed lease on behalf of the applicant, endorsement of the charge, and transfer of the property, without disclosing existing suits in which the applicant challenged the validity of the charge. Given the nature of the orders crafted, full disclosure was obligatory. Had the consent stood, the parties would have defeated the applicant's claim without notice to her, which the constitutional framework and legal system do not permit.
Legal principles established
#- To impeach a consent order it must be shown that the consent was attained by fraud, collusion or an agreement contrary to the policy of the court
- Where a party seeks orders requiring execution of documents affecting a non-party's title, that party and the other parties to the consent are obligated to make full disclosure of subsisting disputes
Court orders
#- 1.The affidavit sworn by the applicant on 5/9/2017 together with its annexures struck out and expunged from the court record
- 2.The interested party (Lucy Mwihaki Macharia) is enjoined as a party in this suit
- 3.The consent adopted and issued by the court on 14/2/2017 is wholly vacated
- 4.All consequential entries made in the register of the suit property are vacated
- 5.The suit is transferred to the Nakuru Environment and Land Court for hearing and disposal of the originating summons
- 6.The plaintiff and the defendant shall share costs of the present application
- Jurisdiction invoked
- Original civil jurisdiction over land title disputes (Land Title Number Nakuru Municipality/Block 4/46); no constitutional or statutory provision expressly invoked
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Njenga Njoroge v Royal Credit Limited & another [2018] KEELC 3166 (KLR)", Case Analysis (2018). Originating Summons dated 18/10/2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3166/eng@2018-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.