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ELCDismissedNot stated in the judgment· [2021] KEELC 4078 (KLR)

Garden City Settlement Limited v Jasho Mwalimu & 13 others [2021] KEELC 4078 (KLR)

Environment and Land Court
4 March 2021
CYC.K. Yano
1,981 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 confirmed that consent orders are binding contracts that can only be undone with proof of fraud or misrepresentation.

What this practically means

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Executive summary

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The defendants/applicants moved the court by notice of motion dated 10th August 2020 seeking, principally, to set aside a consent agreement dated 28th August 2018 which was adopted as an order of the court on 4th October 2018, together with an order allowing their new advocate, Casmir Augustus Obiero, to come on record, and a temporary injunction restraining the plaintiffs from dealing with PLOT NO.312/V/MN (CR NO.7697/1). They alleged material misrepresentation, that their outgoing advocates acted without instruction, and that the advocates took advantage of their illiteracy and indigence to compromise the suit in their absence. The plaintiffs opposed, asserting that the consent was reached through direct negotiations, drafted jointly and executed knowingly by both sides' advocates. On 29th October 2020 counsel for the defendants raised no objection to prayer 2, and the Notice of Change of Advocates was deemed properly on record. The court applied the settled principles in Board of Trustees NSSF v Mwalo, Brooke Bond Liebig v Mallya and Flora Wasike v Destino Wamboko that consent orders have contractual effect and may only be set aside on grounds justifying rescission of a contract, such as fraud, collusion, misrepresentation or lack of sufficient material facts. The court found no fraud, collusion or misrepresentation proved, noted the inordinate delay of over one year and ten months in bringing the application, and rejected the explanation that the defendants were awaiting judgment from Nairobi, since the part-heard matter had not concluded and they had not testified. The motion was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether the threshold for setting aside a consent order was met

Holding

The defendants did not prove fraud, collusion or misrepresentation; the consent was entered with full knowledge of material facts and stands

Reasoning

The court reviewed the settled law from Board of Trustees NSSF v Mwalo, Brooke Bond Liebig v Mallya and Flora Wasike v Destino Wamboko that consent orders have contractual effect and may only be impeached on grounds justifying rescission of a contract. The consent was executed by advocates on both sides and adopted in their presence. The defendants' delay of over one year and ten months, and their explanation of awaiting judgment from Nairobi, were found unconvincing, and no fraud or collusion was proved on the evidence.

p. 2
02

Whether the defendants' explanation for the delay and their absence from the consent was credible

Holding

Their explanation that they were awaiting judgment from Nairobi did not add up, since the matter had not proceeded to conclusion and they had not given evidence

Reasoning

The court observed that although the matter was part-heard, it had never been heard to conclusion and the defendants had certainly not given their evidence, so they could not have been awaiting a judgment. The inordinate delay of more than one year and ten months in bringing the application undermined the claim that they were unaware of, or not party to, the consent.

p. 2

Legal principles established

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  • A consent judgment or order can only be set aside on grounds which would justify setting a contract aside
  • To impeach a consent order it must be shown it was obtained by fraud, collusion or an agreement contrary to the policy of the court

Court orders

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  1. 1.The Notice of Change of Advocates dated 10th August 2020 deemed duly filed and properly on record
  2. 2.The notice of motion dated 10th August 2020 dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure ActSections 1, 3 and 3A
  • Civil Procedure RulesOrder 9 Rule 9(a), Order 40 Rule 2, Order 42 Rule 7, Order 51

Cases cited (4)

  • Board of Trustees National Social Security Fund –v Michael Mwalo
    (2015) eKLR
  • Brooke Bond Liebig (T) Ltd –v- Mallya
    (1995) EA 266
  • Hirani –v- Kassam
    (1952) 19 EACA 131
  • Flora Wasike –v- Destino Wamboko
    (1988) KAR 625
Jurisdiction invoked
Sections 1, 3 and 3A of the Civil Procedure Act and Orders 9, 40, 42 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, "Garden City Settlement Limited v Jasho Mwalimu & 13 others [2021] KEELC 4078 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4078/eng@2021-03-04

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