Southfork Investments Limited v Esquire Investments Limited, Adan Maalim Mursal, Nairobi City Council, Chief Land Registrar, Diamond Trust Bank Kenya Limited & Attorney General (Environment & Land Case 23 of 2020) (Environment and Land) [2021] KEELC 1253 (KLR)
The bottom line
#A Kenyan court refused to change earlier consent orders, confirming that judges cannot overturn other judges' decisions and consent orders bind unless fraud or misrepresentation is proven.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction to vary, discharge or substitute the undertaking-as-to-damages limb of the order of 7th July 2020
The court has no such jurisdiction; the application is a disguised appeal against a substantive decision of a court of equal jurisdiction.
The order of 7th July 2020 was recorded by another judge of the Environment and Land Court who, in her wisdom, found that an undertaking to pay damages without more would suffice. To add to or subtract from those orders would imply that the learned judge was wrong, amounting to an appeal by a judge of equal jurisdiction, which would breed conflict and anarchy in the administration of justice.
Whether the orders of 7th July 2020 were made by consent and whether any ground exists for their variation
The orders were made by consent of the advocates in the presence of counsel and are binding; they can only be set aside on the limited grounds known for impeaching consent orders, none of which were shown.
The orders arose from a compromise recorded by the court to facilitate expeditious hearing of the suit. Consent orders bind both advocates and parties and can only be impeached on circumscribed grounds akin to those for rescinding a contract. The 1st Defendant neither satisfied nor complied with those terms.
Legal principles established
#- A court cannot interfere with a consent judgment or consent order except on grounds that would afford good ground for varying or rescinding a contract between the parties.
- One judge of a court cannot reverse, vary or sit in appeal over the decision of another judge of the same court of concurrent jurisdiction.
Court orders
#- 1.The Notice of Motion Application dated the 23rd March 2021 is dismissed.
- 2.The 1st Defendant/Applicant shall bear the costs of the Application.
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over interlocutory applications in a suit before it; the court held it lacked jurisdiction to sit on appeal over a decision of a court of concurrent/equal jurisdiction (analogy drawn to Article 165(6) of the Constitution)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Southfork Investments Limited v Esquire Investments Limited, Adan Maalim Mursal, Nairobi City Council, Chief Land Registrar, Diamond Trust Bank Kenya Limited & Attorney General (Environment & Land Case 23 of 2020) (Environment and Land) [2021] KEELC 1253 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1253/eng@2021-10-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.