Jeremiah Mbithi & 13 others v Athi Water Service Board [2021] KEELC 4530 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Non-disclosure of pending suits as misrepresentation vitiating a consent order
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
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.
Whether security of Kshs. 250 million should be deposited by the Plaintiffs
The court declined to order security because entitlement to the suit property remains undetermined
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.
Legal principles established
#- 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
#- 1.The consent order recorded in court on 17th July 2019 and adopted by the court on the same day is set aside
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.