Julius Musili Kyunga v Kenya Commercial Bank & another;James Muriuki Karaya(Interested Party) [2019] KEELC 3086 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a secret consent order that harmed a non-party, but let the plaintiff's suit withdrawal stand.
What this practically means
#Executive summary
#Key legal issues
#Competence of an advocate swearing an affidavit for a client in an interlocutory application
The objection is technical and rejected; an advocate may depone to an affidavit in an interlocutory application on facts within his knowledge that do not decide the rights of the parties
The court held the plaintiff's attack on the affidavit was pure technicality contrary to Article 159(2)(d) of the Constitution. An advocate is permitted to swear affidavits in interlocutory applications on facts within his knowledge, and only in contentious matters would such an affidavit be objectionable. The deponent merely referred to court record facts.
Whether the notice of withdrawal of suit should be set aside
Refused. The plaintiff's right to withdraw cannot be taken away; the Interested Party has costs and may still pursue his counter-claim
The court acknowledged that the suit had been set down for hearing on 17th November 2016, so the notice of withdrawal invoked the wrong rule and was procedurally ineffective without leave. However, bound by Supreme Court authority in Salat v IEBC, the court could not bar the withdrawal. Since the notice withdrew the suit with costs and the Interested Party's counter-claim remains alive, no prejudice was established.
Whether the consent order dated 11th July 2016 should be set aside
Set aside. The consent was reached without the involvement of the Interested Party whose rights it abrogated, and in collusion
The consent was signed only by advocates for the plaintiff and defendants, yet provided for refund of the Interested Party's 25% deposit and dealt with his rights over the suit property. There was no evidence he agreed to the refund. A consent binding a non-party reached secretly, and in the court's view collusively, cannot stand; the parties had a duty to involve the Interested Party.
Legal principles established
#- A consent order entered into secretly and without the involvement of an interested party whose rights it seeks to abrogate is liable to be set aside
- Once a suit has been set down for hearing, unilateral withdrawal under Order 25 Rule 1 is ineffective; leave of the court or consent of all parties is required
Court orders
#- 1.The consent order between the plaintiff and the defendants dated 11th July 2016 and filed on 12th July 2016 and all consequential orders therefrom is set aside
- 2.The notice of motion dated 28th February 2018 is allowed in terms of prayer 4 thereof
- 3.The Interested Party is awarded costs of the application
- Jurisdiction invoked
- Original civil jurisdiction; proceedings under Order 25 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Julius Musili Kyunga v Kenya Commercial Bank & another;James Muriuki Karaya(Interested Party) [2019] KEELC 3086 (KLR)", Case Analysis (2019). Not stated in the extract (Notice of Motion dated 28th February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3086/eng@2019-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.