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ELCAllowedNotice of Motion dated 6th January, 2017 (arising from suit filed by plaint dated 10th April, 1997)· [2019] KEELC 4279 (KLR)

David Muthami Muthee v Attorney General; Charles Kimeli Muge (Interested party) [2019] KEELC 4279 (KLR)

High Court of Kenya
7 March 2019
SOS. Okong'o
2,147 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court cancelled consent orders transferring land because the real registered owner was never told or included in the case.

What this practically means

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Executive summary

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The plaintiff sued the Attorney General in 1997 seeking declarations of ownership and adverse possession over Plot No. 36/275/VII, alleging he purchased it in 1985 from Titus Wambua, who died before transfer. On 18th December, 1997 the plaintiff and the Attorney General entered a consent order declaring the plaintiff owner by adverse possession and directing the Registrar of Lands to execute transfer documents; the order was amended on 28th May, 2002 substituting the Deputy Registrar, High Court, who then executed an indenture conveying the property to the plaintiff. The land registrar refused registration on the ground that the registered owner was not a party to the suit. The interested party, executor of the estate of Elphas Kimuge Kimnyango, who claimed to be the registered owner, applied by Notice of Motion dated 6th January, 2017 to set aside the consent orders. He argued the deceased was never joined despite being the registered proprietor, and the Attorney General had no interest in the property. The plaintiff opposed, contending the deceased was fraudulently registered and that his rights were extinguished by limitation. Okong'o J applied the settled principle that consent orders, being contractual, may only be set aside on grounds justifying setting aside a contract. The court held the parties concealed material facts: the Attorney General had no proprietary interest, and the registered owner was condemned unheard. The application was allowed in terms of prayer 2, with costs in the cause, allowing the parties to litigate their claims on merit.

Key legal issues

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01

Whether the consent orders of 18th December, 1997 and 28th May, 2002 should be set aside

Holding

Yes. The consent orders were made without the court being apprised of material facts - the Attorney General, sued as defendant, had no proprietary interest in the suit property and could not contract to alter its title; the registered owner was never joined and would be condemned unheard.

Reasoning

The reliefs sought (declaration of ownership and adverse possession, rectification of register) could only be sought against the registered owner. Neither the deceased nor James, the alleged registered proprietors, were parties. The plaintiff gave no explanation for suing the Attorney General instead. The parties concealed material facts, amounting to sufficient grounds for setting aside the consent orders so that parties may litigate their claims.

p. 3
02

Law governing setting aside of consent orders

Holding

A consent order is contractual in nature and may only be set aside on grounds that would justify setting aside a contract, including fraud, collusion, public policy or material non-disclosure.

Reasoning

The court adopted the settled position from Brooke Bond Liebig v Mallya and Flora Wasike v Destimo Wamboka, and Setton on Judgments and Orders, that consent orders bind parties unless vitiated by fraud, collusion, public policy considerations, insufficient material facts, or other grounds enabling a court to set aside an agreement.

p. 2

Legal principles established

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  • A consent judgment or order has the same effect as a contract and can only be set aside on grounds which would justify the setting aside of a contract.
  • An order made with the consent of counsel is binding on parties and cannot be varied or discharged unless obtained by fraud or collusion, by an agreement contrary to public policy, or without sufficient material facts.

Court orders

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  1. 1.The interested party's Notice of Motion dated 6th January, 2017 is allowed in terms of prayer 2 thereof (setting aside the consent orders of 18th December, 1997 and 28th May, 2002)
  2. 2.The costs of the application shall be in the cause

Authorities

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Cases cited (3)

  • Brooke Bond Liebig Ltd v Mallya
    (1975) EA 266
  • Flora Wasike v Destimo Wamboka
    (1988) 1 KAR 625
  • Board of Trustees National Social Security Fund v Micheal Mwalo
    (2015) eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court over the suit and the interested party's application to set aside consent orders made therein

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, "David Muthami Muthee v Attorney General; Charles Kimeli Muge (Interested party) [2019] KEELC 4279 (KLR)", Case Analysis (2019). Notice of Motion dated 6th January, 2017 (arising from suit filed by plaint dated 10th April, 1997). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4279/eng@2019-03-07

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