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ELCDismissedMiscellaneous Application (Notice of Motion dated 29th November 2018) in ELC No. 466 of 2015· [2019] KEELC 2431 (KLR)

Charanjit Singh Bhamra v Leonard Ochieng & another [2019] KEELC 2431 (KLR)

Environment and Land Court
17 July 2019
1,008 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court refused to reverse a consented transfer of a land case to the Magistrate's Court, confirming consent orders are binding.

What this practically means

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Executive summary

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The Plaintiff filed a Notice of Motion dated 29th November 2018 seeking (a) transfer of Kisumu ELC No. 466 of 2015 back to the Environment and Land Court from the Chief Magistrate's Court, and (b) leave to further amend the plaint, on the ground that the pecuniary jurisdiction of the lower court was insufficient to meet the general damages claim, the suit plot having been valued at Kshs.67,300,000. The 2nd Defendant opposed, showing that the suit had been transferred to the Chief Magistrate's Court by consent of counsel on 19th November 2018, that the plaint disclosed a value of Kshs.3,270,000 within the lower court's jurisdiction, that the amendment application was wrongly brought, and that the suit land had been transferred to a third party in 2008 who was never enjoined and whose developments inflated the valuation. The court framed four issues covering jurisdiction, the effect of the 2018 valuation, amendment, and costs. It held the amendment prayer abandoned for want of submissions, and noted the correct forum for amendment is the Chief Magistrate's Court. It held the consent transfer order could not be varied absent evidence of misrepresentation, fraud, mistake or error, and without a fresh consent. It found the prayers for specific performance and vacant possession would be unavailable without enjoining the registered third party, and the valuation irrelevant. The motion was dismissed with costs to the 2nd Defendant under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Jurisdiction of the lower court over the transferred suit

Holding

The transfer to the Chief Magistrate's Court was by consent and stands; the valuation of the suit land at Kshs.67,300,000 in 2018 (including a third party's developments) does not displace the lower court's jurisdiction based on the value disclosed in the plaint.

Reasoning

The consent order of 19th November 2018 transferring the suit was not rebutted or shown to be tainted. The suit property had been registered in a third party's name since 2008; that third party's developments account for part of the valuation and should not be used to deny the Chief Magistrate's court jurisdiction. The correct forum for amendment is the lower court where the suit is pending.

p. 1
02

Effect of a consent order

Holding

A consent order cannot be reviewed, varied or set aside by the court except through another consent by the parties and/or their counsel on record.

Reasoning

The transfer was effected pursuant to a consent entered by counsel during the mention of 19th November 2018. The plaintiff did not adduce evidence of misrepresentation, fraud, mistake or error. Absent such proof, or a fresh consent (which is lacking since the 2nd Defendant opposes the transfer), the court cannot disturb the consent order.

p. 2
03

Necessity of enjoining the registered proprietor

Holding

Prayers for specific performance and vacant possession would be unavailable without enjoining the person actually registered with the land.

Reasoning

The land Kisumu Municipality/Block 12/428 was transferred to a third party on 31st July 2008, over two years before the suit was filed in December 2010. The plaintiff never sought to enjoin that third party. The 2018 valuation, which includes the third party's developments worth Kshs.25,000,000, is irrelevant to the suit's prayers.

p. 2

Legal principles established

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  • A consent order between parties cannot be reviewed, varied or set aside by the court except through another consent by the parties and/or their counsel on record, absent evidence of misrepresentation, fraud, mistake or error.
  • Prayers of specific performance and vacant possession would be unavailable against a third party registered proprietor who has not been enjoined in the suit.

Court orders

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  1. 1.The Plaintiff's motion dated 29th November 2018 fails and is dismissed with costs
  2. 2.The 2nd Defendant is awarded costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 27
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over suits transferred to the subordinate court; Civil Procedure Act Chapter 21 (Section 27 on costs)

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, "Charanjit Singh Bhamra v Leonard Ochieng & another [2019] KEELC 2431 (KLR)", Case Analysis (2019). Miscellaneous Application (Notice of Motion dated 29th November 2018) in ELC No. 466 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2431/eng@2019-07-17

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