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ELCDismissedNotice of Motion dated 23rd July 2018 (suit over land parcel No. Kiine/Kibingoti/Nguguine/3369)· [2020] KEELC 3120 (KLR)

Maina v Mbuthii; Kimiti (Interested Party) (Environment & Land Case 8 of 2013) [2020] KEELC 3120 (KLR)

Environment and Land Court
13 March 2020
ECE.C. Cherono
2,592 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 refused to undo a land settlement agreement because the seller only complained the price was now too low.

What this practically means

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Executive summary

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The defendant/applicant, Leonard Maina Mbuthii, moved the Environment and Land Court at Kerugoya by Notice of Motion dated 23rd July 2018 seeking review and setting aside of a consent order dated 14th May 2018 under which the interested party, Stephen Kabuthi Kimiti, was to receive half an acre out of land parcel Kiine/Kibingoti/Nguguine/3369, plus leave to be heard and defend himself by giving evidence. He argued the consent was entered in error, under misrepresentation and mistake, that the interested party had paid only Ksh. 505,000 while half an acre was worth Ksh. 800,000, and that he had entered the consent without consulting his family, who wished to refund the money in instalments. The interested party opposed, deposing that the consent was a court-facilitated amicable settlement reached before Hon. Justice S.N. Mukunya, freely signed and adopted, and that the applicant only reneged when he felt the land was worth more. The court found the interested party's sworn account uncontroverted and held that the applicant's real complaint was the inadequacy of consideration, which courts do not investigate. Applying Brooke Bond Liebig v Mallya (approving Hirani v Kassam and Seton on Judgments and Orders), Royal Bank of Scotland v Etridge (No. 2), Namusisi v Ntaabazi and Dhanji v Lulu & Co., the court held there was no fraud, collusion, misrepresentation, undue influence or other sufficient reason to disturb the consent order, and that it is not the court's role to rewrite parties' agreements. The application was dismissed with costs to the interested party on 13th March 2020.

Key legal issues

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01

Whether a consent order may be reviewed and set aside on account of alleged mistake, misrepresentation or inadequacy of consideration

Holding

No. Absent fraud, collusion, misrepresentation or ignorance of material facts, a consent order stands; adequacy of consideration is not justiciable.

Reasoning

The court applied the principles in Brooke Bond Liebig v Mallya approving Seton on Judgments and Orders and Hirani v Kassam: consent orders bind parties unless vitiated by fraud, collusion, or consent given without sufficient material facts. The applicant admitted receipt of the agreed consideration and raised only its inadequacy against current land value, which cannot ground review.

p. 4
02

Whether undue influence or unconscionability vitiated the consent

Holding

No evidence of undue influence or any vitiating circumstance was adduced.

Reasoning

Applying Royal Bank of Scotland v Etridge (No. 2), the court noted the law examines how intention to enter a transaction was secured, but the applicant never alluded to unconscionable acts or undue influence. The interested party's sworn account of a court-facilitated amicable settlement was uncontroverted.

p. 4

Legal principles established

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  • A consent order entered with the consent of the parties is binding and can only be set aside on grounds such as fraud, collusion, agreement contrary to the policy of the Court, or consent given without sufficient material facts, in misrepresentation or ignorance of material facts
  • Courts will not inquire into the sufficiency or adequacy of consideration in a contract
  • It is not the duty of the Court to rewrite agreements for parties but to enforce their contractual obligations

Court orders

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  1. 1.The Notice of Motion dated 23rd July 2018 is dismissed
  2. 2.Costs of the application awarded to the interested party

Authorities

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Legislation

  • Civil Procedure ActSection 1A and 1B
  • Civil Procedure RulesOrder 9 Rule 9(a); Order 36 Rules 2 and 10

Cases cited (11)

  • Flora N. Wasike Vs Destimo Wamboko
    C.A. No. 81 of 1984 (Kisumu), (1988) eKLR / K.A.R 625
  • Brook Bond Liebig Ltd Vs Mallya
    (1975) E.A 266 / (1995) E.A 226
  • Birket Vs Arcon Business Machines Ltd
    (1999) 2 All E.R. 429
  • Makula International Ltd Vs His Eminence Cardinal Nsubuga & Another
    (1982) HCB II
  • National Bank of Kenya Vs Ndungu Njau
    Civil Appeal No. 211 of 1996 (UR)
  • Juma Musa Ali Vs Biasha Omar Seif
    (2018) eKLR
  • Royal Bank of Scotland Vs Etridge (No. 2)
    A.C. 773
  • Hugvein Vs Basely
    (1807) 14 Ves Jun 273
  • Namusisi And Others Vs Ntaabazi
    (2006) 1 E.A 247
  • Mohamed Badrundin M. Dhanji Vs Lulu & Co.
    (1960) E.A 541
  • Hirani Vs Kassam
    (1952) 19 E.A.C.A 131
Jurisdiction invoked
Section 1A and 1B Civil Procedure Act, Order 9 Rule 9(a) and Order 36 Rules 2 and 10 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, "Maina v Mbuthii; Kimiti (Interested Party) (Environment & Land Case 8 of 2013) [2020] KEELC 3120 (KLR)", Case Analysis (2020). Notice of Motion dated 23rd July 2018 (suit over land parcel No. Kiine/Kibingoti/Nguguine/3369). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3120/eng@2020-03-13

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