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ELCDismissedNot stated in the judgment· [2020] KEELC 2419 (KLR)

Marina Ncece Mohammed v Micubu Karugui & Another [2020] KEELC 2419 (KLR)

Environment and Land Court
20 May 2020
LMLucy N. Mbugua
944 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 confirmed that once parties consent to a surveyor's boundary report, it is final unless you can prove fraud or collusion.

What this practically means

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Executive summary

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The plaintiff sued on 10/07/2017 seeking a permanent injunction restraining the defendant from trespassing on or interfering with L.R. No. 2098 Antuamburi Adjudication Section. After the plaintiff's case closed on 3/10/2017, the defendant obtained a consented scene visit. The court issued terms of reference on 18/10/2018 directing the Deputy Registrar or Executive Officer to visit the locus in quo and report on whether a road of access had been created on the plaintiff's land. The visit took place on 14/3/2019 in the presence of both parties; the Executive Officer filed a report on 22/03/2019 and Sub County Surveyor Kimathi P. Kaberia filed one on 26/07/2019, both concluding that a road of access passes through the plaintiff's land. By consent on 23/9/2019 the surveyor's report was adopted as evidence. The defendant then applied to expunge that report and have a fresh report prepared, contending counsel lacked instructions and the report was doctored, whereas the plaintiff opposed, saying the scene visit was attended by the defendants. The court framed one issue: whether the consent order should be set aside. Applying the principle in Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd, the court held that a consent order binds unless obtained by fraud, collusion or in misapprehension of material facts; no such evidence existed, the scene visit was attended by both parties without objection, and the report matched the terms of reference. The application dated 28/11/2019 was dismissed with costs to the plaintiff. The ruling was delivered electronically under COVID-19 practice directions.

Key legal issues

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01

Whether the consent order of 26/7/2019 adopting the surveyor's report should be set aside

Holding

The application lacks merit and is dismissed with costs to the plaintiff

Reasoning

The court applied the principle in Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd that a consent order binds parties unless obtained by fraud, collusion, or in misapprehension of material facts. The scene visit was initiated by the defendant in October 2017, conducted in the presence of both parties, and no objection to the correctness or authenticity of the process was raised at the time. There was no evidence of fraud or collusion, and the surveyor's report was consistent with the Executive Officer's report and with the terms of reference the court set on 18.10.2018. Defendant counsel's claim of lack of instructions did not displace the binding nature of the consent order.

p. 2

Legal principles established

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  • A consent order entered into by counsel is binding and can only be set aside on proof of fraud, collusion, agreement contrary to public policy, or where given without sufficient material facts or in misapprehension of them

Court orders

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  1. 1.The application dated 28/11/2019 is dismissed
  2. 2.Costs of the application to the plaintiff/Respondent
  3. 3.Ruling delivered by electronic mail pursuant to COVID-19 practice directions, parties deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Kenya Commercial Bank Ltd V Specialised Engineering Co. Ltd
    [1982] KLR 485
  • Board of Trustees National Social Security Fund v Micheal Mwalo
    [2015] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over L.R. No. 2098 Antuamburi Adjudication Section; 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, "Marina Ncece Mohammed v Micubu Karugui & Another [2020] KEELC 2419 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2419/eng@2020-05-20

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