Total Kenya Limited v Kerugoya Service Station Ltd & another [2019] KEELC 1140 (KLR)
The bottom line
#A Kenyan court corrected a lease expiry date recorded as 2019 instead of 2029, allowing Total Kenya to stay until 2029 and blocking eviction.
What this practically means
#Executive summary
#Key legal issues
#Whether a consent order entered between parties can be set aside and/or varied
Yes - a consent order may be set aside on grounds such as fraud, collusion, an agreement contrary to court policy, insufficient material facts, or misapprehension/ignorance of material facts, plus any other sufficient reason
The court reaffirmed the established principles for varying or setting aside consent orders. Consent orders are binding as contractual agreements between parties, but the court retains jurisdiction to interfere where the consent was vitiated by fraud, collusion,公共政策 considerations or mistake. The court enumerated six grounds, including 'any other sufficient reason', which provides a residual discretion.
Whether the plaintiff established the principles for setting aside/varying the consent of 31st October 2017
Yes - the erroneous expiry date of 30th June 2019 in clause (e) of the consent was an honest mistake by counsel; the true expiry date of the 15th September 2014 variation of lease was 30th June 2029
Counsel Alex Ngatia Thangei deponed that through an erroneous and honest mistake he recorded 30th June 2019 instead of 30th June 2029. The variation of lease agreement dated 15th September 2014 expressly extended the lease for a further ten years to 30th June 2029, was signed by the parties and witnessed by an advocate. Even the 1st defendant's own defence, further affidavit and submissions acknowledged the 15th September 2014 variation and the 2029 expiry date.
Whether the 1st defendant was entitled to eviction orders and interest on monies deposited in court
No - the 1st defendant's Notice of Motion dated 28th May 2019 failed because the lease was found valid until 30th June 2029
The eviction application was premised on the lease expiring by affluxion of time on 30th June 2019, which rested on the erroneous consent. Having found the consent ought to be set aside and varied to reflect the correct expiry date of 30th June 2029, the foundation of the eviction and interest applications fell away.
Legal principles established
#- A consent order may be set aside on grounds including fraud, collusion, agreement contrary to the policy of the Court, or where given under insufficient material facts or in misapprehension or ignorance of such facts
- An honest mistake by counsel in recording a consent, not visited upon the client, is sufficient reason to set aside or vary the consent order
Court orders
#- 1.The plaintiff be and is hereby granted leave to amend and file the plaint herein
- 2.The plaint to be amended in terms of the draft amended plaint annexed to the application dated 11th March 2019 within 7 days from today
- 3.The consent letter dated 31st October 2017 and filed in Court on 1st November 2017 to be set aside and/or varied and substituted/replaced with a new clause reading: 'The lease between the plaintiff and the defendant over Title No. KERUGOYA TOWN/219 is valid upto 30th June 2029 and the plaintiff will have un-interrupted and quiet possession.'
- 4.Each party shall bear his own costs of the two applications
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the lease/tenancy dispute (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Total Kenya Limited v Kerugoya Service Station Ltd & another [2019] KEELC 1140 (KLR)", Case Analysis (2019). Not stated on the face of the judgment (ELC suit at Kerugoya). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1140/eng@2019-10-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.