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ELCAllowedMSA/BLOCK XV1/509 suit, application dated 3rd March 2017 (full suit number not stated in judgment)· [2018] KEELC 4771 (KLR)

Fatma Khamis Jeneby & another v Rukiya Abdalla Lassie & another [2018] KEELC 4771 (KLR)

Environment and Land Court
19 January 2018
AOA. Omollo
1,072 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a consent order over family land because adult co-owners' consent was never obtained before their interest was transferred.

What this practically means

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Executive summary

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This was a ruling on an application dated 3rd March 2017 by two intended necessary parties - the adult children of the 1st defendant and of the late Abdalla Mbarak Lassie - seeking to be joined as defendants to a land suit concerning plot MSA/BLOCK XV1/509 and to set aside a consent order made on 28th October 2015. The applicants averred that their late father bought and developed the suit plot, their mother was registered only as trustee for them, and the consent was entered into without their knowledge; the defendant mother also denied instructing her former advocate to enter the consent. The plaintiff opposed, deposing that the plot was bought with family money remitted through the applicants' father, that the title was fraudulently acquired by the defendant, and that the land was family property. The court, applying Flora Wasike vs Destimo Wamboko and Board of Trustees NSSF vs Michael Owalo, held that a consent order is binding like a contract and may be set aside for fraud, misrepresentation, error or mistake. Since the title was in joint names under section 91(4) and (6) of the Land Registration Act and the applicants had attained majority by the time of the consent without their consent being sought, the consent was made in error and by mistake. The contested allegations of fraud and family ownership required evidence tested under oath. The court allowed the application: the applicants were joined as defendants, the consent order was set aside with unconditional leave to file defences within 15 days, and costs were to abide the outcome of the suit.

Key legal issues

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01

Grounds for setting aside a consent order

Holding

The consent order of 28 October 2015 was liable to be set aside because it was made in error on the face of it and by mistake, as the applicants' (co-owners') consent was never sought before their interest was severed.

Reasoning

The court applied the Flora Wasike principle that a consent order may be set aside for fraud, misrepresentation, error or mistake, and the NSSF case holding that a consent order cannot be varied or discharged except on grounds justifying setting aside a contract. The title was in joint names under section 91(4) and (6) of the Land Registration Act, requiring co-owners' consent to any transfer inter vivos. By October 2015 the applicants were adults; nothing showed their consent was obtained before the consent order severed their interest, so the consent was made in error and by mistake.

p. 2
02

Joinder of necessary parties to enable trial of contested issues

Holding

The applicants were properly joined as defendants because contested issues of fraud and family ownership required evidence tested under oath, which could only happen if the consent order was set aside and they were joined.

Reasoning

The plaintiff alleged the suit land was family property and the title was fraudulently acquired. Under section 26 of the Land Registration Act, a certificate of title is conclusive evidence of proprietorship unless obtained by fraud, misrepresentation, or illegally/unprocedurally. Such allegations require proof through evidence given under oath, with the opposite party able to test its veracity, which required joining the applicants and setting aside the consent order so all contentious issues could be resolved after a fair hearing.

p. 2

Legal principles established

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  • A consent order may be set aside on grounds of fraud, misrepresentation, error or mistake, and cannot be varied or discharged except on grounds which would justify setting aside a contract.

Court orders

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  1. 1.Applicants joined as defendants to the suit
  2. 2.Consent order of 28th October 2015 set aside with unconditional leave to the defendants to file their respective defences within 15 days of delivery of the ruling
  3. 3.Costs of the application to abide the winner of the case when it is concluded
Jurisdiction invoked
Inherent powers of the court over its own suit and joinder of necessary parties (not expressly stated in the judgment)

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, "Fatma Khamis Jeneby & another v Rukiya Abdalla Lassie & another [2018] KEELC 4771 (KLR)", Case Analysis (2018). MSA/BLOCK XV1/509 suit, application dated 3rd March 2017 (full suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4771/eng@2018-01-19

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