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ELCDismissedKisii ELC Miscellaneous Application (application dated 24th August 2020)· [2020] KEELC 451 (KLR)

J.A.S Kumenda & another v Governor County Government of Kisii & 5 others [2020] KEELC 451 (KLR)

Environment and Land Court
30 November 2020
JOJ. M. Onyango
3,104 words in judgment
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The bottom line

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The court refused to widen a consent order on dumping land after finding words had been inserted into the decree that were never in the original judgment.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii (J.M Onyango, J) determines an application dated 24th August 2020 seeking to review, vary or set aside the consent order recorded on 20th July 2020, under which the Deputy Registrar was directed to visit land parcel KISII MUNICIPALITY/BLOCK/III/301 with the County Land Registrar and County Surveyor to establish whether the 6th Respondent was dumping garbage there. The Applicant had obtained judicial review orders in 2016 quashing the County Government's use of the parcel as a dumpsite; a consent order of 13th December 2016 granted the County amnesty to wind up dumping by 31st December 2016. Contempt proceedings followed. The Applicant sought to broaden the locus visit to cover all limbs of the 2016 orders, including surrounding environs. The Respondents opposed, contending the words 'surrounding environs' were absent from the original judgment and Notice of Motion, and alleging the Applicant was enforcing a doctored judgment and decree. The court compared the annexed judgment and decree with the original pleadings and judgment of Justice Mutungi and found the words 'surrounding environs and surrounding areas' had been interpolated into the consent order and decree, a serious infraction impeachable under section 47 of the Evidence Act as a decree obtained by fraud. The court declined to review the consent order, holding doing so would sanction an illegality, and dismissed the application with costs to the Respondents.

Key legal issues

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Whether the consent order dated 20th July 2020 should be reviewed

Holding

The application for review was dismissed because the decree sought to be enforced contained interpolated words not in the original judgment

Reasoning

The court compared the judgment and decree annexed to the Applicant's affidavit with the Notice of Motion dated 11th March 2013 and the original judgment of Justice Mutungi dated 3rd June 2016. The words 'surrounding environs and surrounding areas' were absent from the original documents and had been introduced into the consent order and decree, amounting to a serious infraction. Under section 47 of the Evidence Act, such a decree is liable to be impeached; reviewing the consent order as proposed would sanction that illegality.

p. 4

Legal principles established

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  • A consent order can only be set aside on grounds which would justify setting aside a contract entered into with knowledge of material facts by legally competent persons
  • A party may show that a judgment, order or decree was obtained by fraud or collusion under section 47 of the Evidence Act

Court orders

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  1. 1.The application for review dated 24th August 2020 is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Contempt of Court Actsection 30
  • Judicature Act Cap 8section 5
  • Civil Procedure Actsections 1A, 1B and 3A
  • Evidence Actsection 47
  • Constitution of Kenya, 2010Article 70
  • Constitution of Kenya, 2010Article 159

Cases cited (5)

  • Kenya National Human Rights Commission v Attorney General & Another
    (2018) eKLR
  • Brooke Bond Liebig Ltd v Mallya
    1975 EA 266
  • Flora Wasike v Destimo Wamboko
    (1988) 1 KAR 625
  • Purcell vs F C Trigell Ltd
    [1970] 2 All ER 671
  • Isaac Kinyanjui Noroge v National Industrial Credit Bank Limited
    (2018) eKLR
Jurisdiction invoked
Inherent jurisdiction to review a consent order under the Civil Procedure Act (sections 1A, 1B and 3A invoked by the Applicant); contempt proceedings under section 5 of the Judicature Act Cap 8

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, "J.A.S Kumenda & another v Governor County Government of Kisii & 5 others [2020] KEELC 451 (KLR)", Case Analysis (2020). Kisii ELC Miscellaneous Application (application dated 24th August 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/451/eng@2020-11-30

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