Elisheba Nasipwondi Wepukhulu & another v Benard Wasilwa Wepukhulu; Margaret Onyanchi Maloba & 2 others (Interested Parties) [2020] KEELC 1862 (KLR)
The bottom line
#A Kenyan court refused to reopen a concluded land case, confirming that once a consent judgment is executed, you cannot join, consolidate, or review it.
What this practically means
#Executive summary
#Key legal issues
#Whether joinder could be granted in a concluded suit
Rejected - joinder requires pending proceedings and nothing remained pending as the decree had been executed
Order 1 Rule 10(2) allows joinder 'at any stage of the proceedings'. Proceedings end at entry of judgment. This suit was compromised by consent judgment on 9th May 2016, no appeal was filed, execution was completed and part of the suit property transferred to third parties. Applying J.K.M v M.W.W, there was nothing pending adjudication to warrant the joinder of the Applicant.
Whether temporary injunction and inhibition orders could issue
Rejected - no pending suit exists upon which such interlocutory relief can attach
Prayers 4 and 8 are essentially for temporary injunction pending trial under Order 40. Such injunctions preserve the subject matter of a suit until trial. The suit having been compromised by consent judgment four years earlier, there was no suit in which the orders could issue; they would also amount to orders in vacuo.
Whether consolidation with ELC Case No 152 of 2016 was possible
Rejected - consolidation requires two pending suits
Under Order 11 Rule 3(h) consolidation is a pre-trial issue, meaning both suits must be pending. Only Bungoma ELC Case No 152 of 2016 was pending; the present suit had been determined and executed, so consolidation with a suit that no longer exists was unmerited.
Whether the consent judgment could be reviewed, varied or set aside
Rejected - consent judgments can only be set aside on contractual grounds and the Applicant was guilty of unreasonable delay
Following Brooke Bond Liebig v Mallya and the line of authority including Hirani v Kassam and Flora Wasike v Destimo Wamboko, a consent judgment has contractual effect and can only be set aside for fraud, mistake, misrepresentation or want of sufficient material facts. The Applicant also delayed eight months after learning of the suit before instructing counsel, failing the 'without unreasonable delay' requirement for review under Order 45 Rule 1.
Legal principles established
#- Joinder of a party under Order 1 Rule 10(2) can only occur in pending proceedings; once judgment is entered and executed there is nothing pending to warrant joinder
- A temporary injunction pendente lite cannot issue where no suit is pending
- Consolidation can only be effected where two or more suits are pending for determination
- A consent judgment has contractual effect and can only be set aside on grounds that would justify setting aside a contract, such as fraud, mistake or misrepresentation
- An application for review must be made without unreasonable delay
Court orders
#- 1.The Applicant's Notice of Motion dated 20th April 2020 is dismissed with costs to the defendant and interested parties
- Jurisdiction invoked
- Civil Procedure Act (Sections 3, 3A, 63(e), 80, 89) and Civil Procedure Rules; Section 68 Land Registration Act; Article 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elisheba Nasipwondi Wepukhulu & another v Benard Wasilwa Wepukhulu; Margaret Onyanchi Maloba & 2 others (Interested Parties) [2020] KEELC 1862 (KLR)", Case Analysis (2020). Bungoma ELC Case (Originating Summons filed 8th August 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1862/eng@2020-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.