Isaac Edwin Nicholas Okero v Maurice Aketch Abala & 8 others [2018] KEELC 3401 (KLR)
The bottom line
#A Kenyan land court corrected its earlier ruling that a consent order had fully settled the dispute, but rejected fraud claims for lack of pleaded particulars and proof.
What this practically means
#Executive summary
#Key legal issues
#Whether the ruling of 18th January 2017 contained an error apparent on the record justifying review
Yes - the ruling erroneously held that the consent order of 17th June 2009 settled the entire suit, when questions on removal of structures and costs remained outstanding
The court applied Section 80 CPA and Order 45 Rule 1. It found that implementation of the consent order would only answer the first question of the Originating Summons and partially answer the second; the question of who should remove the structures and meet the costs thereof plus the costs of the Originating Summons would remain outstanding. The holding that the suit was settled was therefore an error apparent on the record warranting review.
Whether the consent order of 17th June 2009 should be set aside for alleged fraud and non-disclosure by the Land Registrar
No - the alleged fraud was not pleaded with particulars nor proved, and the registrars for the two visits were different persons, so no non-disclosure arose
The court examined the reports on record and found that the Land Registrars who visited the suit lands on 29th January 2002, 29th November 2002 and 28th July 2015 were different people (D.M. Muhanji, Aggrey Kavehi, and P.J. Wanyama/G. Nyangweso respectively). The parties had copies of the reports before consenting. Neither the Land Registrar nor the Attorney General was enjoined in the suit.
Whether a temporary injunction should issue against the 2nd Defendant
Not granted - no prima facie case was established at this stage
Although framed as an issue for determination, the final orders did not include an injunction. The court instead reviewed the ruling and issued case-management directions under Article 159 of the Constitution, Sections 1A, 1B, 3A of the Civil Procedure Act and Section 19 of the Environment and Land Court Act to fast-track the long-outstanding Originating Summons.
Legal principles established
#- Review lies under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules where there is a mistake or error apparent on the face of the record.
- A review may be granted to correct an error that is self-evident on the record.
- Allegations of fraud must be pleaded with particulars and proved.
Court orders
#- 1.The ruling dated 18th January 2017 that the Consent Order of 17th June 2009 had settled the Suit commenced through the Originating Summons is reviewed and set aside.
- 2.Each party bears their own costs in each of the two applications.
- 3.Defendants who have not filed replying affidavits to the Amended Originating Summons dated 25th September 2015 granted last opportunity to do so in 30 days from service of the order.
- 4.Corresponding leave granted to the plaintiff to file and serve a further affidavit after service.
- 5.The Plaintiff to ensure the orders are extracted and served on all Defendants not in Court or represented.
- 6.A mention date for directions to be fixed.
- Jurisdiction invoked
- Sections 1A, 3A, 63 and 80 of the Civil Procedure Act (Cap 21) and Order 43 Rule 1 of the Civil Procedure Rules, 2010; Article 159 of the Constitution; Section 19 of the Environment and Land Court Act No. 19 of 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isaac Edwin Nicholas Okero v Maurice Aketch Abala & 8 others [2018] KEELC 3401 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3401/eng@2018-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.