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ELCDismissedELC Case of Kitale Municipality Block 4/114 (suit by plaintiff Kitane Industries; application dated 1/11/2019)· [2020] KEELC 2195 (KLR)

Kitale Industries v Attorney General & County Government of Trans-Nzoia [2020] KEELC 2195 (KLR)

Environment and Land Court
14 May 2020
3,168 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge J) on a notice of motion dated 1/11/2019 by the plaintiff, Kitale Industries Limited, seeking review and setting aside of the order of 19/7/2018 marking its suit (concerning trespass on Title No. Kitale Municipality Block 4/114) as withdrawn, and reinstatement of the suit for hearing on merit. The plaintiff alleged it instructed withdrawal only to facilitate out-of-court settlement negotiations which later failed, and that its erstwhile advocates never informed it of what transpired in court on 19/7/2018. The defendants opposed, arguing the withdrawal was voluntary and consensual, that the threshold for setting aside a consent order was not met, that there was inordinate delay, and that the application was an abuse of process. The court framed three issues: whether the withdrawal order was a consent order; whether Order 45 rule 1 applied; and what orders should issue. Applying Order 25 of the Civil Procedure Rules, the court held that although no formal written consent was filed, the suit had been set down for hearing and all counsel consented in open court, so the consent was deemed as effective as a written one. Turning to the settled principles that a consent order has contractual effect and may only be set aside on grounds justifying setting aside a contract (fraud, collusion, agreement contrary to public policy, or lack of/misapprehension of material facts), the court found no fraud or collusion alleged and held the plaintiff's claims of misapprehension unproved, noting the plaintiff's own letter of 12/7/2018 instructed withdrawal and that a company could not rely on unattributed oral legal advice. The application was dismissed with costs to the defendants.

Key legal issues

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01

Whether the withdrawal order of 19/7/2018 amounted to a consent order

Holding

It was a consent order under Order 25 rule 2(1) even though no written consent was filed, because the parties consented in open court

Reasoning

The suit had been set down for hearing, so Order 25(2)(1) applied, requiring written consent signed by all parties. Although no formal written consent was filed, all counsel on record consented in open court to the withdrawal. The court held that equity deems as done that which ought to have been done, so the consent of the other parties was deemed as effective as a formal written consent. No intimation of withdrawal preceded the proceedings, but the defendants conceded.

p. 3
02

Whether the legal threshold for setting aside the consent order was met

Holding

The threshold was not met; no fraud, collusion or agreement contrary to the policy of court was alleged, and the claim of misapprehension was unproved

Reasoning

The plaintiff alleged that its director understood withdrawal to mean shelving of the hearing and that erstwhile advocates never informed it of what transpired on 19/7/2018. The court found the allegation of lack of information to be negative and unproved by empirical evidence. The letter of 12/7/2018 actually instructed withdrawal. A company cannot rely on unattributed oral legal advice, and the paucity of exhibited communications undermined the claim.

p. 4
03

Whether Order 45 rule 1 (review) was applicable to set aside a consent order

Holding

The court disposed of the matter on the consent-order threshold without finding it necessary to apply Order 45, effectively treating the application as one to set aside a consent order

Reasoning

The 1st defendant argued the application sought to set aside a consent order by the back door through review. The court framed the second issue as whether Order 45 rule 1 applied if the withdrawal was a consent order, but having found the consent-order threshold unmet, dismissed the application, rendering the review question academic.

p. 5

Legal principles established

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  • A consent order made in the presence and with the consent of counsel is binding on all parties and can only be set aside on grounds which would justify setting aside a contract
  • A duly instructed advocate has implied general authority to compromise and settle the action
  • A consent to withdrawal of a suit set down for hearing need not be in writing where circumstances require expedition; consent given in open court is as effective as a formal written consent

Court orders

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  1. 1.The application dated 1/11/2019 is dismissed
  2. 2.Costs of the application to the defendants

Authorities

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Legislation

  • Constitution of KenyaArticles 50 and 159
  • Civil Procedure ActSections 1A(1), 3, 3A, 63(c)
  • Civil Procedure RulesOrder 45 rule 1(1)(b), Order 51 rule 1, Order 25 rules 1 and 2

Cases cited (7)

  • Flora N. Wasike vs Destimo Wamboko
    [1988] eKLR
  • J M Mwakio vs Kenya Commercial Bank Ltd
    Civil Appeals 28 of 1982 and 69 of 1983
  • James Muchori Maina vs. Kenya Power & Lighting Company Ltd
    [2005] eKLR
  • Kenya Commercial Bank Ltd vs Benjoh Amalgamated Ltd
    Nairobi Civil Appeal No. 276 of 1997
  • Kenya Commercial Bank Ltd vs Specialised Engineering Co. Ltd
    [1982] KLR 485
  • S M N v Z M S & 3 others
    [2017] eKLR
  • Lenina Kemigisha Mbabazi Star Fish Ltd
Jurisdiction invoked
Article 50 and 159 of the Constitution; Sections 1A(1), 3, 3A, 63(c) of the Civil Procedure Act; Order 45(1)(b) and 51(1) of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kitale Industries v Attorney General & County Government of Trans-Nzoia [2020] KEELC 2195 (KLR)", Case Analysis (2020). ELC Case of Kitale Municipality Block 4/114 (suit by plaintiff Kitane Industries; application dated 1/11/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2195/eng@2020-05-14

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