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ELCDismissedMombasa ELC (application dated 29 March 2018; referenced suit Mombasa ELC No. 316 of 2014)· [2020] KEELC 3776 (KLR)

Margaret Walegwa Mawamwandu & others v Changamwe Housing Scheme Ltd & another; Garissa Mattresses Ltd (Aggrieved Party) [2020] KEELC 3776 (KLR)

Environment and Land Court
5 February 2020
MSMunyao Sila
3,191 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~13 min to read original · ~4 min brief

The bottom line

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The court refused to revive a 2011 land judgment because the plaintiffs had agreed to settle the case, took money, and could not back out afterwards.

What this practically means

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Executive summary

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The applicants, who had obtained a judgment of Odero J on 18 November 2011 declaring them entitled to land LR No. 15/V/MN by adverse possession, sought by notice of motion dated 29 March 2018 to set aside subsequent orders discontinuing or dismissing the suit, to reinstate the judgment and decree, and to implement a ruling in Mombasa ELC No. 316 of 2014. The court traced a tangled record: after judgment, the applicants changed advocates; consents dated 18 March 2013 and 24 October 2013 (filed 22 October 2013) respectively discontinued the suit and set aside the judgment; a negotiated settlement with Garissa Mattresses Limited followed, with compensation paid and Disclaimer Agreements executed. Mukunya J later held the court functus officio, and on 20 March 2017 Cherono J noted the suit dismissed for non-attendance. Omollo J had earlier set aside orders permitting execution and directed that the application of 29 March 2018 be heard afresh, bringing it before Munyao Sila J. The court held that the applicants never sought to set aside the consents impugned, that they executed the settlement agreement and received money from the company, and cannot disown Ms. Njoroge while benefiting from her work. Whether the suit was discontinued or dismissed, nothing remains to prosecute or execute; any grievance over breach of the settlement agreement lies in separate proceedings. The application was dismissed with costs to the aggrieved party.

Key legal issues

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01

Effect of the consents discontinuing the suit and setting aside the judgment

Holding

The judgment of 18 November 2011 was validly set aside by consent dated 22 October 2013 and the suit discontinued by consent of 18 March 2013, leaving nothing to execute

Reasoning

The court found it undisputed that the applicants obtained judgment in 2011, then instructed M/s F.W. Njoroge & Co. through which consents were entered discontinuing the suit and setting aside the judgment. The applicants never sought to set aside those consents in this application, so the court could not impugn them. Their conduct - negotiating with and receiving money from Garissa Mattresses - confirmed acquiescence in the settlement.

p. 4
02

Whether the dismissal for want of prosecution of 20 March 2017 should be set aside

Holding

Whether the suit was discontinued or dismissed for want of prosecution, the applicants derive no benefit; no reason exists to set aside the dismissal

Reasoning

The court reasoned that if the suit was discontinued, the applicants' case over the land is at an end; if the suit continued after the setting aside of the judgment, it stands dismissed for want of prosecution and there is no basis to disturb that dismissal. Either way the application fails.

p. 4
03

Remedy for non-performance of the 12 March 2013 agreement

Holding

Any claim for breach of the settlement agreement lies in separate proceedings, not in this suit

Reasoning

The applicants complained that Garissa Mattresses did not comply with the terms of the agreement. The court held that this grievance, even if genuine, does not revive the discontinued suit or the set-aside judgment; the proper course is a separate suit on the agreement's performance.

p. 3

Legal principles established

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  • A party who alleges a consent was entered without authority must apply to set aside that consent; the court cannot set it aside suo motu within an unrelated application
  • Once a judgment is set aside by consent and the suit discontinued, there is no decree capable of execution
  • A party who accepts benefits under a negotiated settlement cannot simultaneously disown the settlement

Court orders

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  1. 1.The application dated 29 March 2018 is dismissed
  2. 2.Costs of the application awarded to the aggrieved party (Garissa Mattresses Limited)

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Civil Procedure Act (Cap 21)Sections 3A and 63(e)
  • Civil Procedure RulesOrder 45; Order 51 Rules 3, 5 and 15
Jurisdiction invoked
Article 159 of the Constitution of Kenya; Sections 3A and 63(e) of the Civil Procedure Act; Order 45 and Order 51 Rules 3, 5 and 15 of the 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, "Margaret Walegwa Mawamwandu & others v Changamwe Housing Scheme Ltd & another; Garissa Mattresses Ltd (Aggrieved Party) [2020] KEELC 3776 (KLR)", Case Analysis (2020). Mombasa ELC (application dated 29 March 2018; referenced suit Mombasa ELC No. 316 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3776/eng@2020-02-05

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