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ELCPartially AllowedJudgment does not state the suit number on its face; relates to a suit over Plot No.1984/V/Mainland North with a decree dated 16th April 2013· [2018] KEELC 3289 (KLR)

Kallliste Limited v Bakari Bendera & 77 others [2018] KEELC 3289 (KLR)

Environment and Land Court
21 May 2018
CYC. Yano
1,695 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed eviction only against defendants whose lawyer signed the settlement, ruling a consent judgment cannot be enforced against people who never agreed to it.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Plot No.1984/V/Mainland North, moved the Court by Notice of Motion dated 25th November 2015 under Sections 1A, 1B, 3A, 34(1) and 38 of the Civil Procedure Rules seeking authorization for the Court Bailiff to demolish structures on the Plot and evict Defendants listed in a schedule to a decree dated 16th April 2013 and issued on 2nd May 2013, together with police security from the OCPD Changamwe during execution. The decree flowed from a consent dated 27th November 2012 between the Plaintiff's advocates (Munyithya & Co.) and Apollo Muinde & Co. for the Defendants. The application was opposed through Replying Affidavits of Father Gabriel Dolan, parish priest of the 60th Defendant and patron of the 59th Defendant, who contended that Defendants represented by Jengo Associates never authorized the consent, that some persons in the schedule were not parties to the suit, that the deponent was not a director of the Plaintiff company, and that the decree, being over a year old, offended Order 22 Rules 17 and 18. The Court, noting that the decree had never been set aside and that the objecting Defendants, though represented by Jengo Associates who had not participated in the consent, had not sought to set it aside, held that the consent bound only those party to it. It allowed the application only against Defendants represented by Apollo Muinde & Associates and ordered each party to bear their own costs.

Key legal issues

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01

Binding effect and executability of a consent judgment against parties who did not consent

Holding

The consent judgment and the decree arising from it bind only the parties who were party to or represented in the consent; Defendants whose counsel (Jengo Associates) neither executed the consent nor attended its adoption are not bound, and execution cannot issue against them

Reasoning

The consent was signed by Munyithya for the Plaintiff and Apollo Muinde for the Defendants. On 14th December 2012 Tuiyott, J directed that Jengo Associates, representing some 34 of the 77 Defendants, be involved in the consent. Although served with a mention notice for 16th April 2013, Jengo Associates did not attend, and Mukunya, J nonetheless adopted the consent. The decree has never been set aside, and the objecting Defendants have not applied to set it aside, but they were never party to it and cannot be bound by it.

p. 2
02

Whether execution of an unchallenged consent decree should be authorized

Holding

An application seeking orders necessary to execute a decree that has never been set aside is properly before the Court and should be granted against the parties bound by the decree

Reasoning

The Court observed that the decree arising from the consent adopted on 16th April 2013 had never been set aside, and that the present motion sought orders necessary to execute that decree. The application was unopposed by Apollo Muinde & Associates, who were party to the consent. The opposition came only from Defendants represented by Jengo Associates who were not party to the consent. The application therefore succeeded only as against those bound by the consent.

p. 2

Legal principles established

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  • A consent judgment or order made in the presence and with the consent of counsel is binding on all parties to the proceedings and cannot be varied or discharged except on grounds such as fraud, collusion, agreement contrary to public policy, or lack of sufficient material facts

Court orders

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  1. 1.The Application granted only to the extent that it applies to the Defendants represented by the firm of Apollo Muinde & Associates
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Rules/ActSections 1A, 1B, 3A, 34(1) and 38(f)
  • Civil Procedure RulesOrder 22 Rules 17 and 18

Cases cited (2)

  • Brooke Boud Liebig (T) Limited –V- Maliya
    (1975) E.A 266
  • Hirani –vs- Kassam
    (1952) 19 EACA 131
Jurisdiction invoked
Sections 1A, 1B, 3A, 34(1) and 38 of the Civil Procedure Act/Rules (as invoked in the Notice of Motion)

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, "Kallliste Limited v Bakari Bendera & 77 others [2018] KEELC 3289 (KLR)", Case Analysis (2018). Judgment does not state the suit number on its face; relates to a suit over Plot No.1984/V/Mainland North with a decree dated 16th April 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3289/eng@2018-05-21

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