Divisional Intergrated Development Programmes Co Ltd v Nelson Mbuva Kithuka & another [2022] KEELC 1452 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court should extend time for the Plaintiff to comply with the consent dated 2nd June, 2020
The application was dismissed; the discretion to enlarge time could not be exercised because no vitiating ground was demonstrated
The court reproduced the consent and found no term requiring the Defendants to furnish completion documents before payment, nor any term that the Plaintiff was to first sell plots to raise funds. Clause (c) required the Defendants to sign transfer documents only upon full payment. The consent contained a default clause the Plaintiff appeared to seek to defeat. Applying Order 50 Rule 6 and the case law on consent orders, the court held that extension of time could not be granted absent fraud, collusion or other grounds justifying interference with a consent order.
Whether the Defendants were obliged under the consent to provide transfer documents before payment
No; the consent required the Defendants to execute transfer documents only upon full payment of Kshs. 9,230,000/= by the Plaintiff
The court perused the consent and noted there was no indication that plots from the suit land were to be sold to third parties first to raise funds, nor that the Defendants were to furnish completion documents such as Land Control Board consent, transfer forms, IDs and KRA PIN certificates in advance. Clause (c) made the Defendants' execution of documents conditional upon full payment, and the consent carried a default clause against the Plaintiff.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside or varied on grounds which would justify setting aside a contract, such as fraud, collusion, illegality, mistake, or if conditions remaining to be fulfilled are not carried out
- A consent order is not lightly to be set aside or varied save by consent or on recognized grounds
- The court has power under Order 50 Rule 6 to enlarge time fixed by an order of the court, on terms as justice requires, even after expiry of the time
Court orders
#- 1.The Plaintiff's Notice of Motion application dated 12th February, 2021 is dismissed with costs
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules (the application); Order 50 Rule 6 of the Civil Procedure Rules on enlargement of time
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Divisional Intergrated Development Programmes Co Ltd v Nelson Mbuva Kithuka & another [2022] KEELC 1452 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1452/eng@2022-02-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.