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ELCPartially AllowedNot stated in the judgment as extracted· [2019] KEELC 3379 (KLR)

Republic v Attorney General & 3 others; Josphat David Mwilaria (Interested Party) [2019] KEELC 3379 (KLR)

Environment and Land Court
22 May 2019
788 words in judgment
View original judgmentRead on Kenya Law Watch case
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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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This was a ruling by the Environment and Land Court at Meru on a Notice of Motion dated 16th February 2016 filed by the interested party, Josphat David Mwilaria, seeking to set aside a judgment delivered on 6th November 2014 and for leave to participate in the main judicial review proceedings. The interested party averred that the suit land belonged to his late father, Zakayo M'Marimba Ibaya, who died in 2003, and that the ex-parte applicant, Liston Mutuma, and the respondents had fraudulently and secretly colluded to acquire the land through a consent dated 3rd November 2014. The ex-parte applicant opposed, asserting that the deceased was represented during objection proceedings by Moses Thuranira Akwalo acting for the family, and denied collusion. The application had been dismissed on 18th June 2018 but was reinstated by a ruling of 29th August 2018, and the respondents ultimately conceded to it at the hearing. The court, applying Order 45 of the Civil Procedure Code and the principles in Brooke Bond Liebig v Maliya as cited in Samuel Wambugu Mwangi v Othaya Boys High School, held that a consent judgment binds parties and cannot be varied unless obtained by fraud, collusion, without sufficient material facts, or for a reason justifying setting aside an agreement. Since the deceased's family were not parties to the judicial review proceedings, the consent was entered into without sufficient material facts concerning ownership of the land and could not stand. The court set aside the judgment of 6th November 2014, granted the interested party leave to respond to the main judicial review notice of motion, and directed that costs of the application abide the outcome of the suit.

Key legal issues

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01

Whether a consent judgment can be set aside where a party with an interest in the subject land was not party to the consent

Holding

The consent judgment of 6th November 2014 was set aside because it was entered into without sufficient material facts, the family of the deceased owner not having been parties to the judicial review proceedings

Reasoning

The court applied the established test that a consent order made in the presence and with the consent of counsel binds parties and cannot be varied unless obtained by fraud or collusion, contrary to policy, without sufficient material facts, or for a reason warranting setting aside an agreement. Here the land belonged to the deceased Zakayo M'Marimba Ibaya, whose family were not parties, so the consent lacked sufficient material facts as to ownership.

p. 2
02

Whether the interested party should be granted leave to participate in the judicial review proceedings

Holding

Leave was granted to the interested party to respond to the main judicial review notice of motion

Reasoning

Having found the consent judgment could not stand, and considering that in judicial review the main concern is the decision-making process, the court set aside the judgment and allowed the interested party, whose father's land was the subject matter, to respond to and participate in the main motion.

p. 2

Legal principles established

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  • A consent judgment cannot stand where it was entered into without sufficient material facts, such as where persons with an interest in the subject matter were not parties to the proceedings

Court orders

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  1. 1.The Judgment delivered on 6th November 2014 is set aside
  2. 2.The interested party is given leave to respond to the main judicial review notice of motion application
  3. 3.The costs of the application shall abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure CodeOrder 45

Cases cited (2)

  • Samuel Wambugu Mwangi Vs Othaya Boys High School
    Civil Appeal No. 7 of 2014 [2014] eKLR
  • Brooke Bond Liebig (T) Limited Vs Maliya
    (1975) E.A. 266
Jurisdiction invoked
Inherent jurisdiction under Order 45 of the Civil Procedure Code (setting aside/review of orders)

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, "Republic v Attorney General & 3 others; Josphat David Mwilaria (Interested Party) [2019] KEELC 3379 (KLR)", Case Analysis (2019). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3379/eng@2019-05-22

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