Stephen Kimitei Arap Sang v Dominic Kiprotich & 8 others [2021] KEELC 3889 (KLR)
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
#Key legal issues
#Whether the 8th and 9th defendants were accorded a hearing
They were properly represented; the 4th defendant had authority to act for all defendants and instructed Mr. Ngetich
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.
Whether the consent order could be set aside or varied
No; the threshold of fraud, collusion or grounds justifying setting aside an agreement was not met
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.
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.Application dated 11th December 2019 dismissed with costs to the plaintiff
- 2.Defendants to pay the unpaid balance within 45 days, failing which eviction orders to issue
- 3.Plaintiff to refund the amount already paid within 60 days upon eviction
- 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.