Micheal Mowesley v Kazungu Sana Sana; Abdulrehman Mohamed Basheikh & 2 others (Interested Parties) [2022] KEELC 995 (KLR)
The bottom line
#A Kenyan court set aside 2010 and 2014 consent orders over land because key facts were hidden, showing consent orders can be undone.
What this practically means
#Executive summary
#Key legal issues
#Setting aside consent orders obtained by fraud, collusion and non-disclosure
The court found concealment of material facts and set aside the consent orders of 12th October 2010 and 4th June 2014
The court applied the established principles in Brooke Bond Liebig v Mallya and KCB v Specialised Engineering that a consent order binds parties unless procured by fraud, collusion, contrary to public policy, or without sufficient material facts. The Applicant showed he was in occupation and registered proprietor while the Defendant readily consented to transfer the suit land, which the court found questionable, concluding material facts were concealed.
Temporary injunction to preserve the suit property
An injunction was issued restraining the Plaintiff and Defendants from interfering with the suit land, as preservation was necessary pending determination of ownership
Relying on Lord Diplock's articulation that interlocutory injunctions are ancillary to a pre-existing cause of action and granted to preserve the status quo pending ascertainment of rights, the court held the property needed preservation to enable determination of the ownership dispute among all parties, and restrained interference with the suit land.
Joinder of Interested Parties
The 2nd and 3rd Intended Interested Parties were joined; the 3rd has a direct stake as registered owner of the suit land and the Land Registrar is custodian of title records
The court applied Rule 7(1) and (2) of the Mutunga Rules permitting joinder of interested parties with leave of court or on the court's own motion. It found the threshold met because the 3rd Intended Interested Party is registered as proprietor of the suit land and the Land Registrar holds the title records.
Legal principles established
#- A consent order can only be set aside on proof of fraud or collusion, agreement contrary to public policy, or where consent was given without sufficient material facts or in misapprehension of them
- Non-disclosure of material facts to the court is a serious issue which may warrant a court to set aside or vary an order
Court orders
#- 1.The consent orders dated 12th October 2010 and 4th June 2014 are set aside
- 2.The matter is to be heard de novo
- 3.The 1st, 2nd and 3rd Interested Parties are joined to the suit
- 4.The Interested Parties to be served with the pleadings within 14 days from the date of the ruling
- 5.Any action arising from the impugned consent orders is declared null and void
- 6.An order of injunction is issued restraining the Plaintiff and the Defendants from interfering with the suit land in any way
- Jurisdiction invoked
- Inherent jurisdiction and civil procedure rules governing setting aside of consent orders; joinder under Rule 7(1) of the Mutunga Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Micheal Mowesley v Kazungu Sana Sana; Abdulrehman Mohamed Basheikh & 2 others (Interested Parties) [2022] KEELC 995 (KLR)", Case Analysis (2022). Malindi ELC (application arising from ELC Case No. 82 of 2010) - Notice of Motion dated 9th June 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/995/eng@2022-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.