Benjamin Chepkirwok Rotich v David Ewoi [2019] KEELC 2325 (KLR)
The bottom line
#The Environment and Land Court in Kitale dismissed an attempt to undo a land consent order, holding the same request had already been decided.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The application is res judicata because it seeks the same relief as the application dated 5/3/2018 which was dismissed on 31/5/2018
The court compared the principal prayer in the earlier application with the instant application and found no difference between the orders sought. The earlier application to vacate or set aside the consent order of 15/3/2017 had been dismissed on 31/5/2018, so the same relief could not be sought again.
Conditions for review/setting aside of a consent order
The applicant failed to establish any of the recognised grounds - no mistake, no want of authority that invalidated the consent, inordinate delay, and no new matter or evidence
The court held that signature by advocates is not mandatory for open-court consents, that the authorities cited on mistake did not assist since no mistake existed, and that the plaintiff's representatives took inordinately long to voice objection. The defendant's explanation of the discrepancy in title numbers was accepted: the land on the ground remained the same.
Aggrieved person under Order 45 rule 1(1)
The applicant cannot be considered an aggrieved person entitled to review
The court adopted the defendant's submission, supported by Ngure -vs- Gachoki Gathaga [1979] KLR 152, that the plaintiff was not aggrieved by the consent order. The surveyor's report showed the survey was correctly conducted on the suit land, demarcating the agreed acreage, with the mutation form submitted for execution.
Legal principles established
#- Parties or their counsel need not sign consent orders recorded in open court for them to be valid
- A party who was not present at the recording of a consent but claims not to have given instructions stands no differently from a party who was present and disowns the consent recorded by their counsel
Court orders
#- 1.The application dated 9/4/2019 is dismissed with costs to the defendant
- Jurisdiction invoked
- Sections 3, 13, 18 and 19 of the Environment and Land Court Act; Sections 1A, 1B, 63(e) Civil Procedure Act and Order 45 Rule 1 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Benjamin Chepkirwok Rotich v David Ewoi [2019] KEELC 2325 (KLR)", Case Analysis (2019). ELC Case, Kitale (application dated 9/4/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2325/eng@2019-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.