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ELCDismissedCase No 238 of 2013· [2019] KEELC 2979 (KLR)

Peter Njuguna Njonge v Julius Narankaik Ologollimot [2019] KEELC 2979 (KLR)

High Court of Kenya at Nakuru
12 June 2019
DOD. O. Ohungo
2,037 words in judgment
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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 plaintiff sued by Originating Summons (originally HCC No. 338 of 2009 (O.S) Nakuru, later transferred) claiming 30 acres of land in Narok/Cis-Mara/Enabelbel/Enengetia/279 by adverse possession since 1981. After negotiations, a consent was filed on 31st October 2018 providing for judgment for the plaintiff to take possession of 30 acres to be excised from the parcel, with survey and sub-division costs shared equally and costs of the suit to the plaintiff. The defendant, acting in person, confirmed the consent in open court and judgment was entered. On 12th November 2018, after instructing Aming'a, Opiyo, Masese & Co Advocates, the defendant filed a Notice of Motion seeking to set aside the consent judgment, alleging he had been arrested, detained at Central Police Station Nakuru and forced at gun point to sign the affidavit and consent. The plaintiff denied duress, deposing to settlement meetings on 1st May, 25th July and 8th August 2018 attended by the parties and their spouses. Applying the principles in S M N v Z M S and Flora N. Wasike v Destimo Wamboko, the court held that a consent judgment has contractual effect and can only be set aside on grounds justifying setting aside a contract; allegations of fraud or coercion against an advocate demand proof to a standard higher than balance of probability. The court found the defendant's chronology showed ample opportunity to report coercion before adoption, his police report came only after the consent was recorded, and his allegations were unrebutted and highly unlikely. The Notice of Motion dated 12th November 2018 was dismissed with costs to the plaintiff. D. O. Ohungo J delivered the ruling at Nakuru on 12th June 2019.

Key legal issues

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01

Setting aside of a consent judgment

Holding

A consent judgment is contractual in nature and will only be set aside on grounds that would justify setting aside a contract, such as fraud, collusion or coercion

Reasoning

The court applied the Court of Appeal's restatement in S M N v Z M S and the earlier Flora N. Wasike v Destimo Wamboko decision. Because the allegations against the plaintiff and his advocate were potentially criminal, the burden on the defendant was higher than a balance of probability. A consent drafted by an advocate and executed by all parties, and confirmed in open court, attracts strong judicial protection.

p. 2
02

Whether the defendant proved coercion and illegality

Holding

The defendant failed to discharge the burden; his allegations were found highly unlikely and the application an afterthought

Reasoning

The plaintiff gave a detailed chronology of settlement meetings from May to August 2018, unrebutted by the defendant. The defendant's own account showed over 45 days between the alleged detentions during which he never reported coercion or informed the court. The consent was adopted in open court where he could have objected, and his police report came only after the consent was recorded, on 5th November 2018.

p. 2

Legal principles established

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  • A court will not interfere with a consent judgment except on grounds that would justify setting aside a contract between the parties
  • A consent judgment has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • Allegations of fraud, collusion or coercion against an advocate or a party must be proven to a standard higher than on a balance of probability

Court orders

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  1. 1.Notice of Motion dated 12th November 2018 dismissed with costs to the plaintiff

Authorities

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Cases cited (3)

  • S M N v Z M S & 3 others
    [2017] eKLR
  • Flora N. Wasike vs Destimo Wamboko
    [1988] eKLR
  • J M Mwakio vs Kenya Commercial Bank Ltd
    Civil Appeals 28 of 1982 and 69 of 1983
Jurisdiction invoked
Original civil jurisdiction of the High Court over the Originating Summons (adverse possession claim) transferred from Nakuru; the ruling concerns a Notice of Motion within that suit

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, "Peter Njuguna Njonge v Julius Narankaik Ologollimot [2019] KEELC 2979 (KLR)", Case Analysis (2019). Case No 238 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2979/eng@2019-06-12

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