Mohamed Mahfudh v Amina Sheyumbe Muhaji; Mohamed Omar Salim (Intended Interested Party/Applicant) [2019] KEELC 3844 (KLR)

Paragraphs 4 and 5 of the consent order directed the Registrar to cancel the endorsement on the title and remove all caveats, which destroyed the validity of the documents the applicant held from the defendant. Since his rights were affected without participation or a hearing, he acquired a right to be heard and to challenge the consent order.

Komingoi J in ELC 363 of 2016 declined the injunction on balance of convenience and occupation, and only noted the consent order in passing. The issue of setting aside the consent order was not in dispute or determined there, so the elements of res judicata were not met and the preliminary objection failed.

The functus officio doctrine applies where a court that has concluded a matter is asked to grant fresh substantive relief such as post-judgment injunctions without a prior prayer for setting aside. Here the application is squarely one to set aside a consent judgment, which the court retains jurisdiction to entertain on good grounds.

Although there was no privity of contract between the plaintiff and the applicant, the consent order's clauses cancelling the title endorsement and removing all caveats directly vitiated the applicant's claimed purchaser's interest. Setting aside consent orders on collusion or third-party rights grounds is permitted, and the applicant showed grounds entitling him to be heard before full implementation.