Lalo Lugwe Lalo and 227 others v Farida Karoney Ogw & 7 others; Ndegwa Ngundi Chimumu and 1,183 others(Interested parties) [2022] KEELC 2087 (KLR)
The bottom line
#The Environment and Land Court dismissed attempts by over 1,180 outsiders to overturn a settlement, confirming consent orders bind parties and can only be undone like a contract.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of intended interested parties to challenge a consent order
Persons who are not parties to a suit have no legal standing to apply for setting aside of a consent validly entered by the parties to the suit
The court found that at all material times the applicants were not and are still not parties to the suit; there was no order joining them as interested parties. They were therefore outsiders to the suit and could not apply to set aside a consent entered by the Petitioners, represented by Kinyua Muyaa Advocates, and the Respondents, represented by Nguyo Wachira of the Attorney General's office, nor submit on behalf of Petitioners already represented by counsel. The application was an abuse of court process.
Setting aside of consent orders and judgments
A consent order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, e.g. fraud, collusion, or misapprehension of material facts
Relying on a line of authorities including Flora N. Wasike v Destimo Wamboko, Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd, Board of Trustees NSSF v Michael Mwalo, Brooke Bond Liebig Ltd v Mallya and Hirani v Kassam, the court held that consents are binding and interfereable only on contractual grounds. None of the grounds raised by the applicants (alleged death of a petitioner, exclusion of parties, absence of leave) was found to justify setting aside the consent.
Joinder where the suit has been settled
An application for joinder cannot be granted where the suit no longer exists having been settled by consent; the remedy is a fresh suit
The second application sought to enjoin the intended 9th Respondent on the ground that they are owners of the suit property. The Petitioners objected that there was no suit as it had been settled. The court agreed that since the matter had been settled by the parties through the consent, there was no suit in existence to which a party could be joined, and the applicants' remedy lay in filing a fresh suit.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, such as fraud, collusion, agreement contrary to the policy of the court, or misapprehension of material facts
- A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless obtained by fraud, collusion or an agreement contrary to the policy of the court
- A duly instructed advocate has implied general authority to compromise and settle the action on behalf of the client
Court orders
#- 1.The application dated 16th September 2021 is dismissed with costs
- 2.The application dated 24th November 2021 seeking joinder of the intended 9th Respondent is dismissed with costs to the Petitioners
- 3.The intended 9th Respondent's remedy would be to file a fresh suit
- Jurisdiction invoked
- Article 22 and 23 of the Constitution of Kenya as read with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lalo Lugwe Lalo and 227 others v Farida Karoney Ogw & 7 others; Ndegwa Ngundi Chimumu and 1,183 others(Interested parties) [2022] KEELC 2087 (KLR)", Case Analysis (2022). Petition No. 21 of 2018 (Applications dated 16th September 2021 and 24th November 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2087/eng@2022-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.