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ELCAllowedMalindi ELC (application arising from ELC Case No. 82 of 2010) - Notice of Motion dated 9th June 2021· [2022] KEELC 995 (KLR)

Micheal Mowesley v Kazungu Sana Sana; Abdulrehman Mohamed Basheikh & 2 others (Interested Parties) [2022] KEELC 995 (KLR)

Environment and Land Court
2 March 2022
2,439 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny, J) determined a Notice of Motion dated 9th June 2021 by the 1st Interested Party, Abdulrahman Mohamed Basheikh, who claimed to have purchased an 8-acre portion of the suit property (subdivision number 1642/II/MN) from the Defendant in 1980, obtained title in 1993 and lived on the land. Searches in 2021 revealed that entries had been made against the title pursuant to a consent order dated 12th October 2010 and an order dated 4th June 2014 in ELC Case No. 82 of 2010, transferring the property to a third party, with no copies of the impugned orders in the registry file. The Applicant sought an injunction, setting aside of the consent orders, and joinder of the 1st, 2nd and 3rd Interested Parties as Defendants. The application was unopposed despite service. The court framed three issues: whether the consent orders were procured by fraud, collusion and non-disclosure of material facts; whether the threshold for a temporary injunction was met; and whether the intended Interested Parties should be joined. Applying the principles in Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd and Brooke Bond Liebig v Mallya, the court found concealment of material facts, set aside the consent orders of 12th October 2010 and 4th June 2014, joined the Interested Parties, declared actions arising from the impugned orders null and void, issued an injunction restraining interference with the suit land, and directed that the matter proceed de novo with service of pleadings within 14 days.

Key legal issues

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01

Setting aside consent orders obtained by fraud, collusion and non-disclosure

Holding

The court found concealment of material facts and set aside the consent orders of 12th October 2010 and 4th June 2014

Reasoning

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.

p. 3
02

Temporary injunction to preserve the suit property

Holding

An injunction was issued restraining the Plaintiff and Defendants from interfering with the suit land, as preservation was necessary pending determination of ownership

Reasoning

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.

p. 3
03

Joinder of Interested Parties

Holding

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

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The consent orders dated 12th October 2010 and 4th June 2014 are set aside
  2. 2.The matter is to be heard de novo
  3. 3.The 1st, 2nd and 3rd Interested Parties are joined to the suit
  4. 4.The Interested Parties to be served with the pleadings within 14 days from the date of the ruling
  5. 5.Any action arising from the impugned consent orders is declared null and void
  6. 6.An order of injunction is issued restraining the Plaintiff and the Defendants from interfering with the suit land in any way

Authorities

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Legislation

  • Mutunga Rules (Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules)Rule 7(1) and 7(2)
  • Civil Procedure RulesOrder 21 [1]

Cases cited (4)

  • Brooke Bond Liebig Ltd v Mallya
    [1975] EA 266
  • Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd
    [1982] KLR 485
  • Hirani v Kassam
    [1952] 19 EACA 131
  • Samson Munikah Practicing as Munikah & Company Advocates v Wedube Estates Limited
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

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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, "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.