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ELCDismissedNot stated in the judgment· [2021] KEELC 3228 (KLR)

Samuel Njogu Kamotho & 43 others v Kenya African National Union (KANU) [2021] KEELC 3228 (KLR)

Environment and Land Court
27 May 2021
DOD. O. Ohungo
1,774 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to undo a land settlement that the parties' own lawyer had agreed to in court, confirming that consent orders bind like contracts.

What this practically means

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Executive summary

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The plaintiffs sued in 2019 claiming to be members of the defendant with valid leases over suit property Naivasha Municipality Block 5/386, and initially obtained, then failed to sustain, interim injunctive relief. The defendant entered a sale agreement for the property on 26th August 2019 and later sought eviction; that application was dismissed because the sale was concluded in violation of an interim injunction and eviction, being akin to a mandatory injunction, had to await trial. Immediately after that ruling, the parties recorded an oral consent: the plaintiffs to vacate by 30th March 2021, failing which eviction would issue, with each party bearing its own costs. The plaintiffs then changed advocates and moved the court to set aside, vary or review the consent orders and for leave to amend the plaint, arguing their former advocate recorded the consent without consultation, that the eviction would cause irreparable hardship during the pandemic, and that they wished to pool resources to purchase the property. The defendant opposed, maintaining the advocate had authority and that the application met no threshold for review. Applying the settled principles in Flora N. Wasike v Destimo Wamboko and Hirani v Kassam, the court held a consent order has contractual effect and can only be set aside on grounds justifying setting aside a contract. The advocate's authority was established by his conduct of the case; no collusion or misrepresentation was proved; hardship and purchase intentions were irrelevant; and amendment was impossible in a concluded case. The application was dismissed with costs to the defendant.

Key legal issues

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01

Whether a consent order recorded by counsel can be set aside on the ground of lack of consultation

Holding

No. Counsel who filed the suit and prosecuted it had authority to record the consent, binding the clients; allegations of exceeded instructions made in the advocate's absence and without his affidavit are invalid

Reasoning

The court found the plaintiffs validly instituted and prosecuted the suit through Mr Ndubi, who personally attended court and recorded the consent with the same authority he had to draft and file pleadings. Allegations that he exceeded instructions were made in his absence and unsupported by any affidavit from him, and cannot ground setting aside a consent order.

p. 2
02

Whether hardship, pandemic-related suffering, and an intention to purchase the property justify setting aside the consent

Holding

No. Parties must face the consequences of a contract freely entered into; such considerations are neither here nor there and the consent is not against public policy

Reasoning

The court held that claims of hardship from eviction and the ambition to pool resources over three years to buy the suit property cannot invalidate a freely entered contract. The court has no power to compel the defendant to sell to the plaintiffs, and the consent was not contrary to public policy.

p. 2
03

Whether leave to amend the plaint can be granted after the matter was marked settled

Holding

No, amendment is impossible in a concluded case and no draft amended plaint was exhibited

Reasoning

The matter had been marked settled on the consent terms, so it was concluded. The plaintiffs also failed to exhibit a draft amended plaint, indicating the application for amendment was an afterthought designed to keep the litigation alive rather than a genuine prayer.

p. 2

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • An order made in the presence and with the consent of counsel is binding and cannot be varied or discharged unless obtained by fraud, collusion, agreement contrary to the policy of the court, or without sufficient material facts

Court orders

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  1. 1.Notice of Motion dated 31st March 2021 dismissed with costs to the defendant
Jurisdiction invoked
Original civil suit; inherent powers to review/set aside consent orders under civil procedure

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, "Samuel Njogu Kamotho & 43 others v Kenya African National Union (KANU) [2021] KEELC 3228 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3228/eng@2021-05-27

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