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ELCDismissedNotice of Motion dated 20th December 2018 (in the suit over LR No. 37/366/1, Nairobi West)· [2019] KEELC 1193 (KLR)

Samuel Mbugua Mwangi v Buffet Park Limited; Jerri International Limited (Interested Party) [2019] KEELC 1193 (KLR)

Environment and Land Court
16 October 2019
LKL. Komingoi
1,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A tenant who wasn't part of a property dispute cannot join it after settlement; the court told him to file a fresh suit.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 20th December 2018 by Peter Kimani, an intended interested party, seeking leave to be joined as an interested party in proceedings between Samuel Mbugua Mwangi (plaintiff) and Buffet Park Limited (defendant), and seeking setting aside of a consent judgment and decree, re-opening of the suit, a mandatory injunction for reinstatement and vacant possession of premises on LR No. 37/366/1, Nairobi West, cross-examination of the plaintiff and the defendant's directors, and a locus in quo visit. The applicant alleged it was a tenant evicted without a court order despite a Business Premises Rent Tribunal order in its favour, invoking section 152G of the Land Act. The respondents opposed, denying any contract with the applicant and urging that courts are reluctant to interfere with lawfully entered consents. The court framed two issues: whether the application was merited and who should bear costs. Relying on Order 1 rule 10(2), the court held there were no pending proceedings as a consent judgment had been entered on 18th September 2018, rendering it functus officio. Citing KCB v Benjoh Amalgamated and Hirani v Kassam, it held a consent judgment has contractual effect and cannot be set aside by a stranger to it. Applying the privity doctrine from Savings & Loans v Gakombe, the court held the applicant's tenancy was with the defendant only, and any claim should be pursued in a fresh suit. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the intended interested party should be joined and the consent judgment set aside

Holding

The application was dismissed; the court was functus officio after entering the consent judgment and the applicant, being a stranger to the consent and to the plaintiff, had no claim enforceable in the suit.

Reasoning

The court held there were no pending proceedings capable of joinder under Order 1 rule 10(2) since a consent judgment had been entered on 18th September 2018. A consent judgment has contractual effect and can only be set aside on grounds justifying setting aside a contract, and only by or for parties to it. The applicant's alleged tenancy was with the defendant only, so privity of contract barred any claim against the plaintiff; its remedy was a fresh suit against the defendant.

p. 3

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.
  • A court that has substantially adjudicated upon a matter is functus officio and the matter becomes res judicata.
  • Under the doctrine of privity, a contract cannot confer rights or impose obligations on persons who are not parties to it.

Court orders

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  1. 1.The notice of motion dated 20th December 2018 is dismissed.
  2. 2.Each party to bear own costs.

Authorities

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Legislation

  • Environment and Land Court ActSections 3, 13(7), 18 and 19
  • Civil Procedure Rules 2010Order 1 Rule 10(2); Orders 40 and 51
  • Land ActSection 152G

Cases cited (9)

  • China Young Engineering Co vs L. G. Mwacharo & Another
    Nairobi HC Civil Suit No. 81 of 2011
  • Francis Kariuki Muruatetu & Another vs Republic & Others
    Petition No. 15 of 2015 (consolidated with No. 16 of 2015)
  • Kenya Women Finance Trust vs Bernard Oyugi Jaoko & Others
    Migori HCCC Appeal No. 111 of 2017 / [2018] eKLR
  • Savings & Loans (K) Ltd vs Kanyenje Karangaita Gakombe & Another
    (2015) eKLR
  • Rising Star Commodities Ltd vs Hohmed Igbal Mohhamed
    MSA ELC No. 92 of 2018
  • Flora Wasike
    [1988] 1 KAR 256
  • Enock Muhonji vs Hamid Abdalla
    HC Civil Case No. 58 of 2012
  • Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd
  • Hirani vs Kassam
    [1952] 19 EACA 131
Jurisdiction invoked
Sections 3, 13(7), 18 and 19 of the Environment and Land Court Act (No. 19 of 2011); Order 1 Rule 10(2), Orders 40 and 51 of the Civil Procedure Rules 2010

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, "Samuel Mbugua Mwangi v Buffet Park Limited; Jerri International Limited (Interested Party) [2019] KEELC 1193 (KLR)", Case Analysis (2019). Notice of Motion dated 20th December 2018 (in the suit over LR No. 37/366/1, Nairobi West). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1193/eng@2019-10-16

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