Pius Kazungu Mweni & 12 others v Jefwa Nyale & another [2020] KEELC 2219 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the filing of a consent automatically settles a suit
No - a consent must be verified, approved and adopted by the court before it operates as an order of the court; until then the suit remains alive and capable of dismissal
The court relied on Rule 35 of the Practice Directions on Proceedings in the Environment and Land Court, which requires filed consents to be approved and adopted by the court. Since the consent dated 8 May 2018 was never endorsed or adopted, it could not operate as a court order or settle the matter, and the suit continued and could be dismissed for want of prosecution.
Whether counsel's failure to attend the notice to show cause warranted setting aside the dismissal
No - counsel gave no explanation for non-attendance, and the court held counsel must live with the consequences
The court rejected counsel's suggestion of a 'mass dismissal' without perusal of the file, holding that it is the duty of counsel to appear and guide the court, since the record does not always speak for itself. Having failed to appear at the NTSC or explain the absence, counsel's clients had to bear the consequences of the dismissal.
Whether the consent would have bound the 2nd respondent
Even if properly adopted, the consent could only bind the 1st respondent, not the 2nd respondent who was not party to it
The consent was signed by advocates for the plaintiffs and by M/s Kamoti Omollo & Company, whom the court assumed acted for the 1st respondent, Mr. Nyale. The 2nd respondent, Mr. Abdulrahman, who owned plot 6198 and was awarded costs, was not a party to the consent, so it could not have prevented dismissal at least as against him.
Legal principles established
#- A filed consent does not become a court order unless approved and adopted by the court
- It is counsel's duty to follow up on approval and adoption of a consent
Court orders
#- 1.Application dated 10 February 2020 dismissed
- 2.The suit stands dismissed with costs to the 2nd respondent
- 3.The 2nd respondent is at liberty to proceed to tax its bill of costs
- Jurisdiction invoked
- Inherent powers of the Environment and Land Court to set aside orders; application within ELC Case No. 228 of 2014
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- PASP & another v EPCP (Acting as Next Friend of SAP - Minor)[2023] KEELC 18136 (KLR)21 Jun 2023applied
Cite this brief
#Cite this brief
Caselaw, "Pius Kazungu Mweni & 12 others v Jefwa Nyale & another [2020] KEELC 2219 (KLR)", Case Analysis (2020). MSA ELC Case No. 228 of 2014 (application dated 10 February 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2219/eng@2020-05-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.