Republic v Attorney General & 3 others; Josphat David Mwilaria (Interested Party) [2019] KEELC 3379 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether a consent judgment can be set aside where a party with an interest in the subject land was not party to the consent
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
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.
Whether the interested party should be granted leave to participate in the judicial review proceedings
Leave was granted to the interested party to respond to the main judicial review notice of motion
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.
Legal principles established
#- 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
#- 1.The Judgment delivered on 6th November 2014 is set aside
- 2.The interested party is given leave to respond to the main judicial review notice of motion application
- 3.The costs of the application shall abide the outcome of the suit
- Jurisdiction invoked
- Inherent jurisdiction under Order 45 of the Civil Procedure Code (setting aside/review of orders)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.