Johnson Kimathi Kabura & another v Makokoyo Nchoke Leshani & 5 others [2019] KEELC 3060 (KLR)
The bottom line
#A Kajiado court refused to undo a consent order on land boundaries because the applicants made fraud allegations without proof, showing consent orders are as binding as contracts.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 23rd May, 2014 should be reviewed or set aside under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules
The application for review failed; the grounds of fraud, misrepresentation and professional malfeasance were general and unproved, with no supporting affidavit from Timothy Pello and no error apparent on the face of the record.
The court restated the settled test that consent orders may be set aside only on grounds justifying vitiation of a contract. The Applicants, having participated in the survey and recording of the consent, produced only general allegations, no particulars of fraud, and no sworn affidavit from Timothy Pello confirming the alleged confessions. No new and important matter or apparent error was demonstrated, and the delay of almost five years weighed against review.
Whether the three Surveyors should be summoned for cross-examination
The prayer was refused as consequential on the refusal to set aside the consent order.
Since the consent order adopting the Survey Report and Mutation stood, the court found no basis for summoning the Surveyors to be cross-examined on the authenticity of their report.
Whether the Applicants were entitled to a temporary injunction pending the outcome of the suit
The injunction was refused; the Applicants did not establish a prima facie case with a probability of success.
Applying the Giella v Cassman Brown principles, the court noted that the joint survey adopted as a court order had established the boundaries and acreages of the suit parcels and directed harmonization with the Registry Index Map. The Applicants failed to demonstrate how the subdivision of parcel 959 was to their detriment, so no prima facie case was shown.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, such as fraud, collusion, illegality or mistake.
- Mere allegations of fraud without particulars or supporting proof are not a sufficient ground for review or setting aside a consent order.
Court orders
#- 1.Dismissal of the Notice of Motion dated 7th May, 2015 in its entirety
- 2.Costs of the application awarded to the Respondents/Defendants
- Jurisdiction invoked
- Sections 3A, 63 and 80 of the Civil Procedure Act and Orders 40, 45 and 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Johnson Kimathi Kabura & another v Makokoyo Nchoke Leshani & 5 others [2019] KEELC 3060 (KLR)", Case Analysis (2019). Not stated in the judgment (Notice of Motion dated 7th May, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3060/eng@2019-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.