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ELCOtherELC No. 180 of 2013· [2020] KEELC 3239 (KLR)

Benjamin Chepkirwok Rotich v Josephine Longok [2020] KEELC 3239 (KLR)

Environment and Land Court
27 February 2020
MNMwangi Njoroge
1,238 words in judgment
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The bottom line

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A Kenyan court confirmed that once parties sign a consent order settling a land dispute, the case is over—even if a hearing later happens by mistake.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Land Parcel No. Trans Nzoia/Kaisagat Makhonge Block 7/Ainasit/4 measuring 4.90 Ha, sued for eviction of the defendant from the land, alleging trespass. The original defendant, David Ewoi, died during the suit and was substituted by his widow as legal representative of his estate. She denied the claim, asserting ownership of one acre purchased in 1999 through a chain from the legitimate owner of 12 acres in Ainasit Farm No. 7424, and raised adverse possession. After the plaintiff's case closed, the parties on 15/3/2017 recorded a consent judgment directing the County Surveyor, Trans Nzoia, to carve out one acre from the suit parcel, with survey fees shared and a report filed within 30 days. Despite several dismissed applications to set aside the consent, the matter inadvertently proceeded to a full defence hearing and written submissions. Delivering directions, the court held that the consent had conclusively settled the suit and that the court had no jurisdiction to hear the matter beyond adopting the consent order. It vacated all proceedings of 7/10/2019, 11/11/2019 and 9/12/2019, save the directive on costs submissions. Exercising discretion under Section 27 of the Civil Procedure Act, the court ordered the plaintiff, whose consent amounted to an admission of liability, to bear the costs of the suit, including the costs of the vacated proceedings, with execution to issue on default. Judgment delivered at Kitale on 27th February 2020.

Key legal issues

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01

Whether the consent recorded on 15/3/2017 finalised the matter

Holding

Yes. The consent order, which had survived several unsuccessful applications to set it aside, finally concluded the suit; the subsequent defence hearing was taken inadvertently and the proceedings of 7/10/2019, 11/11/2019 and 9/12/2019 were vacated.

Reasoning

The court examined the consent order and noted its earlier rulings of 31/5/2018 and 8/7/2019 upholding it after dismissed applications to set it aside. It found the consent could only have been recorded upon an admission of liability by the plaintiff. The defence hearing therefore proceeded inadvertently on an old, voluminous file, and all post-consent proceedings had to be vacated except the submissions directive limited to costs.

p. 2
02

Who should bear the costs of the suit

Holding

The plaintiff, having admitted the claim by the consent, bears the costs of the suit, including the costs of the vacated proceedings.

Reasoning

Section 27 of the Civil Procedure Act gives the court full discretion over costs notwithstanding lack of jurisdiction to try the suit, and in the absence of specific intervention costs follow the event. The plaintiff's admission of the claim through the consent meant he had no valid claim against the defendant; hence costs, including those of the inadvertently taken proceedings, were awarded to the defendant against the plaintiff.

p. 2

Legal principles established

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  • Once parties record a consent judgment, the suit is concluded and the court has no jurisdiction to proceed with the hearing beyond adopting the consent order
  • The lack of jurisdiction to try a suit after a consent order is no bar to the court exercising its discretion under Section 27 of the Civil Procedure Act on costs

Court orders

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  1. 1.Vacated all proceedings taken on 7/10/2019, 11/11/2019 and 9/12/2019 except the directive to file submissions in so far as it relates to costs of the suit
  2. 2.Declared that the matter is settled by the consent order recorded on 15/3/2017 and that the court had no jurisdiction to hear and determine the matter beyond adopting the consent order
  3. 3.Ordered that the plaintiff shall bear the costs of the suit, including the costs of the taking of the proceedings of 7/10/2019, 11/11/2019 and 9/12/2019
  4. 4.Ordered that the plaintiff shall pay the taxed costs and in default execution shall issue in the normal manner

Authorities

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Legislation

  • Civil Procedure ActSection 27
Jurisdiction invoked
Article 162(2) Constitution (Environment and Land Court) with jurisdiction limited by the consent order; costs under Section 27 of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Benjamin Chepkirwok Rotich v Josephine Longok [2020] KEELC 3239 (KLR)", Case Analysis (2020). ELC No. 180 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3239/eng@2020-02-27

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