Julius Ndiritu & 2 others v Habib Omar Kongo [2019] KEELC 2714 (KLR)
The bottom line
#The Environment and Land Court dismissed an attempt to undo a 2008 settlement, confirming that consent orders bind parties unless fraud or misapprehension is proven.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 5th May 2008 (adopted 16th June 2008) should be set aside on the ground that the advocate who entered it lacked instructions
The application fails; the plaintiffs did not prove fraud, collusion or misapprehension, and the allegation of lack of instructions was baseless, as evidenced by their failure to pursue the complaint against the advocate
The court reviewed the record and found frequent correspondences between Wamwayi & Co. Advocates, the defendant's advocates and the court, inconsistent with the claim of no instructions. The plaintiffs reported the advocate to the Advocates Complaints Commission but abandoned the complaint by failing to supply particulars, leading to closure of the file. Applying the principles in KCB v Specialised Engineering and Hirani v Kassam, the plaintiffs failed to establish any ground for setting aside the consent order.
Whether the inordinate delay of over 10 years in bringing the application disentitles the plaintiffs to the discretionary relief
Yes; the orders sought to be set aside were issued on 5th May 2008, over 10 years before the application, with no explanation for the delay
The court noted a similar application dated 31st October 2009 was filed and never prosecuted. No explanation was offered for the delay in challenging the consent order and taxation. The court treated the application as an attempt to defeat the ends of justice, particularly since ELC 508 of 2010 between the same parties on the same subject matter was already part heard.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract
- A consent order entered into by counsel binds all parties and can only be set aside or varied if obtained by fraud, collusion, agreement contrary to public policy, or without sufficient material facts or in misapprehension thereof
Court orders
#- 1.The notice of motion dated 21st November 2017 is dismissed with costs to the defendants/respondents
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and Order 51 Rules 4, 5, Order 19 Rule 19(1)(2), Order 22 Rules 25, 31(1)(52), Order 9 Rules 9, 10 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- George Mbugua Thiongo v Republic [2013] KECA 449 (KLR)[2013] KECA 449 (KLR)26 Jul 2013
Cite this brief
#Cite this brief
Caselaw, "Julius Ndiritu & 2 others v Habib Omar Kongo [2019] KEELC 2714 (KLR)", Case Analysis (2019). Civil 193 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2714/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.