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ELCDismissedNotice of Motion dated 5th July 2019 ( suit filed 5th June 2014, Nyeri ELC )· [2019] KEELC 1327 (KLR)

Joshua Kinyua Kiarie & another (suing for and on behalf of the estate of Joyce Wamaitha (deceased) v Muiruri Wainaina & another [2019] KEELC 1327 (KLR)

Environment and Land Court
23 October 2019
2,508 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Defendants/Applicants moved the Court by Notice of Motion dated 5th July 2019 under Sections 3 and 3A, Order 10 Rule 11, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, seeking a stay of execution and setting aside or variation of the judgment dated 20th February 2019, together with injunctions restraining the Plaintiffs from entering or trespassing on parcels Nyeri/Uaso Nyiro/205 and 206. The underlying suit, filed on 5th June 2014, sought resurvey and fixing of boundaries of parcels 205, 206 and 207 by the District Land Registrar. By a consent recorded on 10th November 2015, the parties agreed that the Registrar and Surveyor visit the site and file a report within 90 days. The report was filed late but after an extension of time, and having gone unchallenged, was adopted as the judgment of the Court on 20th February 2019. The Applicants contended that their Counsel lacked instructions, that the consent was not executed or adhered to, and that the Registrar's report was filed without leave. The Respondents countered that the Applicants were represented by an advocate at all material times and that no fraud was proved. The Court, applying Hirani v Kassam, Brooke Bond Liebig v Mallya, Munyiri v Ndungunya and Samuel Mbugua Ikumbu, held that consent judgments can only be set aside on grounds such as fraud, collusion, or ignorance of material facts. It found Counsel had full instructions and authority to compromise, and that no fraud or misapprehension was shown. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the consent judgment adopted as the judgment of the Court can be set aside

Holding

The consent judgment cannot be set aside as no fraud, collusion, mistake or absence of material facts was demonstrated; Counsel had full instructions

Reasoning

The Court reviewed the settled law on setting aside consent judgments (Hirani v Kassam, Brooke Bond Liebig v Mallya, Munyiri v Ndungunya, Samuel Mbugua Ikumbu). It found nothing to show Counsel acted without instructions, that instructions had been terminated, or that any fraud or collusion existed. All material facts were known to the parties and the compromise terms were clear and unequivocal, leaving no room for mistake or misapprehension.

p. 3
02

Whether the Land Registrar's report filed out of the 90-day period without leave should be expunged

Holding

The report was unchallenged and had been adopted as the judgment of the Court; the Court did not purge it

Reasoning

The report dated 19th December 2017 was filed on 9th January 2018 after the 90-day period set in the consent. Time had, however, been extended by the Court on 23rd November 2017 by 30 days, and the report was confirmed filed at the mention of 7th March 2018 with the Defendant's Advocate present seeking a copy. The report went unchallenged and was adopted as judgment on 20th February 2019.

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03

Whether the Applicant can challenge the consent judgment by this application rather than appeal or review

Holding

The application did not meet the threshold for setting aside a consent judgment; the proper avenue where a party has a problem with a judgment is appeal

Reasoning

The Respondents argued that what the Applicants sought to undo was a finalized judgment, and the only avenue was appeal. The Court held that the procedure available to challenge a consent order or judgment is by way of an application for review or a different suit, and that the inherent jurisdiction cannot be invoked where rules provide the procedure. No grounds for review were established.

p. 3

Legal principles established

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  • A consent judgment or order is binding and can only be varied or set aside on grounds such as fraud, collusion, agreement contrary to the policy of the Court, or consent given without sufficient material facts, in misapprehension or ignorance of material facts
  • Once a consent order or judgment has been entered into by the parties, the procedure to challenge or set it aside is by way of an application for review or a different suit
  • Counsel with full instructions has authority to compromise all matters connected with the action

Court orders

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  1. 1.The Application dated 5th July 2019 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesSections 3 and 3A; Order 10 Rule 11; Order 42 Rule 6; Order 51 Rule 1
  • Land ActSection 18(2)

Cases cited (7)

  • SMN vs ZMS & 3 Others
    [2017] eKLR
  • Mumias Out growers Company (1998) Ltd vs Mumias Sugar Company Ltd
    NRB HCCC No. 414 of 2008
  • Muchiri vs Attorney General & 3 others
    (1991) KLR 516
  • Brooke Bond Liebig (T) Limited vs Mallya
    (1975) E.A. 266
  • Hirani vs Kassam
    (1952), 19 EACA 131
  • Munyiri vs Ndungunya
    (1985) KLR 370
  • Samuel Mbugua Ikumbu v Barclays Bank of Kenya Limited
    [2015] eKLR
Jurisdiction invoked
Sections 3 and 3A, Order 10 Rule 11, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Joshua Kinyua Kiarie & another (suing for and on behalf of the estate of Joyce Wamaitha (deceased) v Muiruri Wainaina & another [2019] KEELC 1327 (KLR)", Case Analysis (2019). Notice of Motion dated 5th July 2019 ( suit filed 5th June 2014, Nyeri ELC ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1327/eng@2019-10-23

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