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ELCDismissedNot stated in the judgment (suit concerning PLOT NO. MN/I/1890)· [2019] KEELC 230 (KLR)

Siegfried Michael Hofestetter v Rangatira Limited [2019] KEELC 230 (KLR)

Environment and Land Court
16 December 2019
CYC.K. Yano
1,549 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Mombasa court refused to help a landowner who tried to change a deal both parties had already agreed to, confirming consent orders bind firmly.

What this practically means

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Executive summary

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The plaintiff applicant moved the court by Notice of Motion dated 12th July 2019, under Sections 1A and 1B of the Civil Procedure Act and Article 159(2) of the Constitution, seeking an order that the suit be set down for formal proof to determine the ratio of sharing proceeds from the sale of Plot No. MN/I/1890, and an injunction restraining the defendant from selling, charging, subdividing, transferring or otherwise interfering with the title pending that formal proof. The application rested on a consent order adopted on 4th December 2018, under which the parties agreed to sell a portion of the property, hold proceeds in a joint account of their advocates, and divide the proceeds in a ratio to be agreed. The plaintiff deposed that the defendant refused to cooperate, that a caveat on the mother title was removed without due process, and that the defendant might adversely deal with the title, causing irreparable loss. The defendant opposed through grounds of opposition, arguing the application was premature since the property had not been sold, the parties had not disagreed on the ratio, and an injunction would defeat the very consent the plaintiff had signed. The court, C.K. Yano J, held that the consent order remained in force, left the sharing ratio to the parties, and that the plaintiff's application was effectively an attempt to set aside the consent without alleging fraud, collusion, misrepresentation or mistake. Applying settled authority that consent orders have contractual effect, the court found the application premature, self-defeating and devoid of merit, dismissing it with costs on 16th December 2019.

Key legal issues

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01

Whether the court should set down formal proof to determine the ratio of sharing proceeds from the sale of Plot MN/I/1890

Holding

The application was premature; the consent order left determination of the ratio to the parties themselves and the court's jurisdiction arises only upon a failure to agree after sale.

Reasoning

The consent of 30/10/2018, adopted as a court order on 4th December 2018, provided that the parties would agree on the sharing ratio after sale. The property had not been sold and no disagreement was alleged. The applicant did not allege misrepresentation, mistake, coercion, fraud or collusion. Seeking a court determination of the ratio amounted to impermissibly seeking to vary the consent.

p. 2
02

Whether an injunction should issue restraining the Defendant from dealing with the suit property

Holding

No injunction was granted; it would contradict the subsisting consent order that the property be sold and proceeds shared.

Reasoning

The parties mutually agreed in the consent to sell the property and share the proceeds. The consent remained in force and had not been set aside. The court found the injunction claim superfluous and self-defeating, since stopping the sale would defeat the very consent order the plaintiff sought to enforce.

p. 2

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, such as fraud, collusion, misrepresentation or an agreement contrary to the policy of the court.
  • The court's jurisdiction to determine the ratio of sharing sale proceeds is invoked only where the parties have failed to agree after the property has been sold as per the consent order.

Court orders

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  1. 1.The Notice of Motion dated 12th July 2019 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Constitution of KenyaArticle 159(2)

Cases cited (4)

  • Board of Trustees National Social Security Fund v Michael Mwalo
    (2015) eKLR
  • Brooke Bond Liebig (T) Limited v Mallya
    (1995) EA 266
  • Hirani v Kassam
    (1952) 19 EACA 131
  • Flora Wasike v Destio Wamboko
    (1988) 1 KAR 625
Jurisdiction invoked
Article 159(2) of the Constitution and Sections 1A and 1B of the Civil Procedure 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, "Siegfried Michael Hofestetter v Rangatira Limited [2019] KEELC 230 (KLR)", Case Analysis (2019). Not stated in the judgment (suit concerning PLOT NO. MN/I/1890). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/230/eng@2019-12-16

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