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ELCDismissedNot stated in the judgment· [2021] KEELC 599 (KLR)

Jaybinix Investments Limited v Hawi Developers Limited & 2 others; . Suleiman Nyamwaya Okoth & 22 others (Applicants) [2021] KEELC 599 (KLR)

Environment and Land Court
25 November 2021
1,530 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed an attempt to join a 2009 land case, ruling that a consent judgment is binding and cannot be attacked after eleven years of silence.

What this practically means

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Executive summary

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This ruling by L. Komingoi J of the Environment and Land Court, Nairobi, determined a Notice of Motion dated 23rd September 2021 in which the Applicants sought to be joined as defendants and to set aside a consent judgment adopted on 4th December 2009 together with the decree issued on 8th April 2009. The Applicants, who had purchased apartments between 2005 and 2007 with leases registered against the Mother Title, claimed a sufficient interest to challenge the consent. The Plaintiff/Respondent opposed, contending the consent was entered regularly and that the court had become functus officio. The court framed three issues: joinder, setting aside the consent judgment, and costs. On joinder, relying on JMK v MWW and Tang Gas Distributors, the court held that Order 1 Rule 10(2) contemplates joinder only in pending proceedings, and no proceedings were pending after the consent was adopted; further, the Applicants did not seek to re-open the suit. On setting aside, applying Flora N. Wasike v Destimo Wamboko, Mbugua Ikumbu v Barclays Bank and Brooke Bond Liebig v Mallya, the court held that a consent judgment has contractual effect and may only be set aside on grounds such as fraud, collusion or illegality, none of which was demonstrated. The court also found the application brought after an inordinate, unexplained delay of over eleven years, invoking Snell's Equity on stale demands, and held that the court was functus officio upon adoption of the consent. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the Applicants could be joined as defendants

Holding

They could not, because there were no pending proceedings before the court after the consent judgment was adopted, and the Applicants did not seek to re-open the suit.

Reasoning

The court relied on JMK v MWW, which adopted Tang Gas Distributors, holding that the power to add parties under Order 1 Rule 10(2) can only be exercised where proceedings are live; once a suit is finally disposed of with nothing more to be done, the rule is inapplicable. Since the suit was concluded upon adoption of the consent in 2009, the joinder application was incompetent.

p. 3
02

Whether the consent judgment ought to be set aside

Holding

No; a consent judgment can only be set aside on grounds that would vitiate a contract such as fraud, collusion or illegality, none of which was demonstrated.

Reasoning

Relying on Flora N. Wasike v Destimo Wamboko, Mbugua Ikumbu v Barclays Bank and Brooke Bond Liebig v Mallya, the court held that consent judgments have contractual effect. The Applicants, who were not parties when the consent was adopted, failed to demonstrate fraud, collusion, illegality or mistake warranting setting aside the consent judgment and decree.

p. 3
03

Whether the court was functus officio and whether delay defeated the application

Holding

The court was functus officio upon adoption of the consent judgment, and the eleven-year unexplained delay rendered the application stale.

Reasoning

The court invoked Raila Odinga & Others v IEBC on functus officio and Snell's Equity (quoting Smith v Clay) on stale demands, finding that a court of equity will not aid a party who has slept on their rights; over eleven years of unexplained delay since the 2009 consent justified dismissal.

p. 4

Legal principles established

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  • A consent judgment has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • Joinder of parties under Order 1 Rule 10(2) is available only where proceedings are still pending
  • A court becomes functus officio upon adoption of a consent judgment
  • Equity refuses to aid stale demands where a party has slept on its rights

Court orders

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  1. 1.The Notice of Motion dated 23rd September 2021 is dismissed with no orders as to costs.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 1 Rule 10(2); Order 40 Rules 1 and 3; Order 51

Cases cited (9)

  • JMK vs MWW & Another
    [2015] eKLR
  • CENTRAL KENYA LTD. V. TRUST BANK & 4 OTHERS
    CA NO. 222 OF 1998
  • TANG GAS DISTRIBUTORS LTD V. SAID & OTHERS
    [2014] EA 448
  • Flora N. Wasike vs Destimo Wamboko
    [1982-88] IKAR 625
  • Mbugua Ikumbu vs Barclays Bank of Kenya Limited
    [2015] eKLR
  • Brooke Bond Liebig vs Mallya
    [1975] EA 266
  • Abigail Barma vs Mwangi Theuri
    ELC No 393 of 2013
  • Smith v Clay
    [1967] 3 Bro C.C 639 n
  • Raila Odinga & Others vs IEBC
    [2013] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act; Orders 1 rules 10, 40, rules 1 and 3 and 51 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, "Jaybinix Investments Limited v Hawi Developers Limited & 2 others; . Suleiman Nyamwaya Okoth & 22 others (Applicants) [2021] KEELC 599 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/599/eng@2021-11-25

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