Rhoda Muthoki Kioko Wambua & another v Monica Nzilani Kimuya & 3 others [2021] KEELC 4269 (KLR)
The bottom line
#A Kenyan land court refused to stop a property sub-division that had already happened, confirming that consent orders bind parties unless formally set aside.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction can issue to stop a process already concluded
No; an application for injunction that has been overtaken by events will be dismissed as it serves no practical purpose
The court noted that pursuant to the consent order of 19th July, 2018, the Defendants had already surveyed and sub-divided the suit property and issued title deeds and transfer documents. Relying on Esso Kenya Ltd v Mark Makwata Okiyo and Cyka Holdings Ltd v Nairobi City County Government, the court held that a temporary injunction prevents that which has not yet happened and cannot restrain that which has already happened.
Effect of the consent order of 19th July, 2018 on the Plaintiffs' claim
The Plaintiffs, not having sought to set aside the consent, are bound by it; absent an allegation of breach, they have no prima facie case
The consent order adopted by the court directed the Defendants to facilitate survey and sub-division and required the Plaintiffs to meet survey and transfer costs. The Plaintiffs did not dispute the consent nor seek to set it aside, nor allege breach. Having failed to facilitate registration of their portions, it would be speculative to find their rights were violated.
Leave to amend the Plaint to reflect the correct subject matter
Leave granted; the amendment is unopposed and corrects an erroneous description of the suit property
The Defendants did not oppose the amendment, and the court observed that the property actually sub-divided pursuant to the consent order was Konza North/Konza North Block 2 (Malili) 275 and not Konza North/Konza North Block 2/1622 as pleaded. The power to allow amendments is intended to enable the court to determine the true substantive merits of the case.
Legal principles established
#- A party is bound by a consent order unless it is set aside; an injunction cannot restrain what has already happened
Court orders
#- 1.The Plaintiffs are granted leave to amend the Plaint in terms of the draft Amended Plaint within fourteen (14) days from the date of the Ruling
- 2.Each party to bear his own costs
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court over land disputes (suit commenced by Plaint dated 21st March, 2018)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rhoda Muthoki Kioko Wambua & another v Monica Nzilani Kimuya & 3 others [2021] KEELC 4269 (KLR)", Case Analysis (2021). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4269/eng@2021-02-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.