Elizabeth Wanjiru Kamau & another v James Mubia Gitundu & another [2020] KEELC 2761 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a land consent judgment after finding a lawyer's false claim about a missing court file tricked the landowners into a bad deal.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent judgment of 26/1/2017 was procured by fraudulent misrepresentation and should be set aside
Yes. The court found the consent was obtained through the previous advocate's misrepresentation that the Plaintiffs stood to lose the whole land because the court file had disappeared.
The court reviewed the record and found the file had earlier been successfully reconstructed in 2014, so the advocate knew a missing file could be reconstructed. The misrepresentation induced the Plaintiffs to accept terms to their detriment (only 35% of the property). Although the Plaintiffs produced no correspondence evidencing the representation and delayed about two years before applying, the court concluded the consent was procured by fraud and set it aside.
Whether delay and lack of documentary evidence defeated the application
The court noted the delay but found it did not preclude setting aside the consent.
The court observed the Plaintiffs applied to peruse the file on 5/3/2019, nearly two years after the consent, and only moved to set it aside on 26/7/2019, and that they gave no evidence of correspondence with their former advocates. Nonetheless, the court found that the Plaintiffs' advocates had failed to keep them informed, which prompted the 1st Plaintiff to come to court personally, and held the fraud ground made out despite these shortcomings.
Legal principles established
#- To set aside a consent judgment a party must show fraud, collusion, misapprehension of material facts, that the agreement is contrary to the policy of the court, or other sufficient reason
- The loss of a court file cannot lead a proprietor of land to lose his land, since a missing court file can be reconstructed
- A party seeking to set aside a consent on grounds of fraud must produce evidence of the misrepresentation, such as correspondence with the advocate alleged to have made it
- A party seeking to set aside a consent ought to act promptly
Court orders
#- 1.The application dated 26/7/2019 is allowed
- 2.The consent dated 26/1/2017 (adopted as a consent judgment on 29/5/2017) is set aside so the suit can be heard and determined on its own merit
- 3.Each party will bear its own costs
- Jurisdiction invoked
- Original civil jurisdiction over the suit and application to set aside a consent judgment recorded in the same suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Wanjiru Kamau & another v James Mubia Gitundu & another [2020] KEELC 2761 (KLR)", Case Analysis (2020). Not stated in the judgment (Nairobi ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2761/eng@2020-05-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.