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ELCAllowedNotice of Motion dated 11th February 2019 (suit instituted 30th September 2010)· [2020] KEELC 1966 (KLR)

Ismael Shemaka v Raffaela Pochintesta & another [2020] KEELC 1966 (KLR)

Environment and Land Court
17 June 2020
JOJ.O. Olola
2,151 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court allowed a 2015 land settlement to be reopened because the agreed sale proceeds covered only a fraction of the debt.

What this practically means

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Executive summary

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Ismael Shemaka (Plaintiff) sued Raffaela Ponchintesta and Saraf Ventures Ltd in 2010 seeking recovery of Euros 88,000 allegedly lent to the 1st Defendant, claiming the Defendants' plots Kilifi/Jimba/684 and Kilifi/Jimba/1334. The Defendants denied the debt and counterclaimed for restitution of title deeds held by the Plaintiff. After partial trial, the parties recorded a consent judgment on 30th September 2015 under which Plot 684 was to be sold and proceeds held in a joint interest-earning account to satisfy the Plaintiff's claim, title to Plot 1334 was to be released to the Defendants, and the suit marked settled. By a Notice of Motion dated 11th February 2019, the Plaintiff sought review of the consent, asserting Plot 684 fetched only Kshs 5 Million against an agreed aggregate debt of Kshs 70,224,000, and asking that Plot 1334 also be sold. The Defendants opposed, arguing the consent was concluded, the application was an afterthought, and the Plaintiff had opportunity to value the property before consenting. J.O. Olola J applied Brook Bond Liebig v Mallya and Flora Wasike v Destimo Wamboka on the contractual effect of consent orders, but found the consent had not resolved the dispute and remained executory: the sale proceeds were insufficient and never placed in the joint account. It would be inequitable to enforce the consent as it stood. The application was allowed with no order as to costs.

Key legal issues

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01

Whether a consent order may be varied or discharged

Holding

A consent order can only be varied or discharged on grounds such as fraud, collusion, misapprehension or ignorance of material facts, as it has contractual effect.

Reasoning

Relying on Brook Bond Liebig v Mallya and Flora Wasike v Destimo Wamboka, the court restated that a consent judgment stands as a contract between the parties and can only be set aside on grounds that would justify setting aside a contract, or where conditions remain unfulfilled.

p. 3
02

Whether the 2015 consent order was executory and unfulfilled

Holding

Yes; the consent order had not resolved the dispute and remained executory, justifying review to permit sale of the second property.

Reasoning

Clause 3 required the Plaintiff's sums to be paid from proceeds of the sale of Plot 684, but the sale yielded only Kshs 5 Million against an agreed debt of Kshs 70,224,000. The proceeds were also never placed in a joint interest-earning account as Clause 2 required. Enforcing the consent as it stood would be inequitable given the Plaintiff's mistaken belief that the sale proceeds would suffice.

p. 3

Legal principles established

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  • A consent order/judgment has contractual effect and can only be set aside on grounds which would justify setting aside a contract
  • The court may make further orders necessary for the implementation and execution of the terms of a consent decree

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 11th February 2019 is allowed
  2. 2.No order as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 25 Rule 5

Cases cited (2)

  • Brook Bond Lie Ltd –vs- Mallya
    (1975) EA 266
  • Flora Wasike –vs- Destimo Wamboka
    (1988)1 KAR 625
Jurisdiction invoked
Review of consent order under Order 25 Rule 5 of the Civil Procedure Rules

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, "Ismael Shemaka v Raffaela Pochintesta & another [2020] KEELC 1966 (KLR)", Case Analysis (2020). Notice of Motion dated 11th February 2019 (suit instituted 30th September 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1966/eng@2020-06-17

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