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Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (consent order applied mutatis mutandis to ELC No. 50 of 2019)· [2021] KEELC 4530 (KLR)

Jeremiah Mbithi & 13 others v Athi Water Service Board [2021] KEELC 4530 (KLR)

Environment and Land Court
29 January 2021
3,535 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a settlement agreement because the landowners hid ongoing court cases about who really owns the land.

What this practically means

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Executive summary

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The Defendant, a Water Works Development Agency established under the Water Act, 2016, moved the court by Notice of Motion dated 9th June 2020 seeking to vacate or set aside, or alternatively review or vary, a consent order recorded on 17th July 2019, and further seeking an order that the Plaintiffs deposit Kshs. 250 million as security. The consent order had constituted a committee to determine the bona fide project-affected land owners in the area of the Miwongoni dam water project in Machakos, and had stopped all project works until a Resettlement Action Plan Review Report was prepared. The Defendant alleged that the Plaintiffs, in their pleadings and when recording the consent, represented themselves as owners of the suit property without disclosing that other suits over the same land were pending between the Plaintiffs and third parties, and that the contractor had claimed over Kshs. 120 million in delay costs. The Plaintiffs opposed, contending the consent was lawfully obtained, that a consent order can be set aside only on grounds such as fraud or collusion, and that they could not be made to give security for land they own. Applying the settled principles that a consent order has contractual effect and may be set aside on grounds justifying rescission of a contract, including misrepresentation and non-disclosure of material facts, the court found the Plaintiffs knowingly made false representations by not disclosing the pending suits. The court set aside the consent order but declined to order the security deposit, since entitlement to the suit property for compensation purposes remained undetermined. The Plaintiffs were ordered to pay the costs of the application.

Key legal issues

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01

Non-disclosure of pending suits as misrepresentation vitiating a consent order

Holding

The Plaintiffs' non-disclosure of pending suits concerning ownership of the suit property amounted to a knowing false representation of material facts which induced the Defendant to record the consent order

Reasoning

The Plaintiffs averred they were owners of the suit property and did not disclose existing pending suits with third parties over the same land. Disclosure only emerged after the consent was recorded, when the Plaintiffs proposed suspending the project pending determination of those suits. Since the identity of the bona fide project-affected persons depended on ownership, the non-disclosure changed the trajectory of the consent entirely and justified setting it aside under the contractual principles governing consent orders.

p. 5
02

Whether security of Kshs. 250 million should be deposited by the Plaintiffs

Holding

The court declined to order security because entitlement to the suit property remains undetermined

Reasoning

Although the consent was set aside, the court noted that the Plaintiffs were entitled to ventilate their case and that the question of who is entitled to the suit property for purposes of compensation was still pending. Ordering security at that interim stage was therefore unwarranted, and the injunction application remained undetermined on its merits.

p. 5

Legal principles established

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  • A consent order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, such as fraud, collusion, non-disclosure of sufficient material facts, or misapprehension of material facts
  • A misrepresentation is an untrue statement of fact made by one party to another which induces the contract

Court orders

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  1. 1.The consent order recorded in court on 17th July 2019 and adopted by the court on the same day is set aside
  2. 2.The Plaintiffs to pay the costs of the Application
Jurisdiction invoked
Inherent power of the court to set aside or review its own consent orders; Application brought by Notice of Motion dated 9th June 2020

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, "Jeremiah Mbithi & 13 others v Athi Water Service Board [2021] KEELC 4530 (KLR)", Case Analysis (2021). Not stated in the judgment (consent order applied mutatis mutandis to ELC No. 50 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4530/eng@2021-01-29

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