Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedEldoret Municipality/Block 15/1829 suit (Plaint dated 30th March 2017)· [2021] KEELC 3889 (KLR)

Stephen Kimitei Arap Sang v Dominic Kiprotich & 8 others [2021] KEELC 3889 (KLR)

Environment and Land Court
3 March 2021
2,104 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to undo a land sale settlement, confirming that consent orders bind buyers unless they prove fraud or collusion.

What this practically means

#

Executive summary

#
This ruling by the Environment and Land Court at Eldoret (M. A. Odeny, J) determines an application dated 11th December 2019 by the 8th and 9th defendants seeking, among other things, to set aside the proceedings of 6th November 2019, to be accorded a hearing on an application dated 30th September 2019, and to extend by six months the time for complying with a consent judgment recorded on 5th December 2017. The consent decree declared the plaintiff owner of Eldoret Municipality Block 15/1829 and allowed the defendants to acquire the plaintiff's interest by paying Kshs 3 million in instalments, with eviction on default of two consecutive instalments. The applicants claimed they lost their advocate, the late E C Rotich, and were surprised that Kigen, Ngetich & Co. Advocates appeared without instructions. The plaintiff opposed, showing the 4th defendant held an authority to act for all defendants and had instructed Mr. Ngetich, who filed a notice of change and defended the eviction application. The court held the defendants were properly represented and that, per Brooke Bond Liebig v Mallya and Hirani v Kassam, a consent order binds unless obtained by fraud, collusion or grounds justifying setting aside an agreement. No such grounds were shown; the application was dismissed with costs, and the defendants were given 45 days to pay the balance, failing which eviction would issue, with a refund of amounts paid within 60 days.

Key legal issues

#
01

Whether the 8th and 9th defendants were accorded a hearing

Holding

They were properly represented; the 4th defendant had authority to act for all defendants and instructed Mr. Ngetich

Reasoning

The court found that an authority to act filed on 6th June 2017 empowered the 4th defendant to act and sign documents for the 8th and 9th defendants. Through that authority the 4th defendant instructed Mr. Ngetich, who filed a notice of change and defended the plaintiff's eviction application. Representation was therefore proper under Order 9 Rule 1 of the Civil Procedure Rules.

p. 3
02

Whether the consent order could be set aside or varied

Holding

No; the threshold of fraud, collusion or grounds justifying setting aside an agreement was not met

Reasoning

Relying on Brooke Bond Liebig v Mallya and Hirani v Kassam, consent orders are contractual and binding unless obtained by fraud, collusion, misapprehension or other grounds that would justify setting aside an agreement. The applicants showed none; the application was an afterthought to buy time.

p. 4

Legal principles established

#
  • A consent judgment may only be set aside for fraud, collusion, or any reason which would enable the court to set aside an agreement
  • An order made in the presence and with the consent of counsel is binding and cannot be varied or discharged unless obtained by fraud or collusion or for a reason justifying setting aside an agreement

Court orders

#
  1. 1.Application dated 11th December 2019 dismissed with costs to the plaintiff
  2. 2.Defendants to pay the unpaid balance within 45 days, failing which eviction orders to issue
  3. 3.Plaintiff to refund the amount already paid within 60 days upon eviction

Authorities

#

Legislation

  • Civil Procedure Actsection 95
  • Civil Procedure RulesOrder 9 Rule 1
  • Civil Procedure RulesOrder 50 Rule 6

Cases cited (6)

  • East African Portland Cement Company Limited v Superior Homes Limited [2017] eKLR
    [2017] eKLR
  • Samuel Mbugua Ikumbu v Barclays Bank of Kenya Limited [2015] eKLR
    [2015] eKLR
  • Flora Wasike v. Destimo Wamboko (1982-1988) 1 KAR 625
    (1982-1988) 1 KAR 625
  • J.M. Mwakio v. Kenya Commercial Bank Ltd Civ. Apps 28 of 1982 and 69 of 1983
    Civ. Apps 28 of 1982 and 69 of 1983
  • Brooke Bond Liebig v. Mallya 1975 E.A. 266
    1975 E.A. 266
  • Hirani v. Kassam (1952), 19 EACA 131
    (1952), 19 EACA 131
Jurisdiction invoked
Inherent jurisdiction and civil procedure rules governing setting aside/varying consent orders (Order 9 Rule 1, section 95 Civil Procedure Act, Order 50 Rule 6 Civil Procedure Rules cited in submissions)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Stephen Kimitei Arap Sang v Dominic Kiprotich & 8 others [2021] KEELC 3889 (KLR)", Case Analysis (2021). Eldoret Municipality/Block 15/1829 suit (Plaint dated 30th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3889/eng@2021-03-03

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