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ELCDismissedNot stated in judgment· [2022] KEELC 2649 (KLR)

Ondiek & others v Ominde (Suing on his own behalf and on behalf of Joel Ominde Ondiek (Deceased)) (Environment & Land Case 360 of 2015) [2022] KEELC 2649 (KLR)

Environment and Land Court
7 July 2022
1,683 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The court refused to undo a land consent order, confirming you can only overturn one by proving fraud, collusion, mistake or illegality.

What this practically means

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Executive summary

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The Defendant filed an Amended Notice of Motion on 9th November 2021 seeking leave for new advocates to come on record after judgment, a stay of execution of the orders of December 5, 2018, and review, setting aside, alteration and amendment of those orders for re-execution on terms agreeable to both parties, including a fresh survey of the suit land being part of parcel Kisumu/Korando/1841. The application was supported by the affidavit of Mirembe Edmond, an advocate, who alleged the consent orders had not been followed, that the surveyors were biased and that the surveyor's report was based on falsehood, and that the Plaintiffs were implementing the orders to the Defendant's detriment. The Plaintiffs filed grounds of opposition, arguing the application was incompetent, frivolous and an abuse of process, that the consent had been recorded freely with the participation of counsel and litigants, and that no proof showed the Defendant's portion had been interfered with. The court framed the single issue as whether it could review, set aside, alter or amend its orders of December 5, 2018. Relying on Samuel Wambugu Mwangi v Othaya Boys High School, Brooke Bond Liebig v Maliya and Kenya Commercial Bank v Benjoh Amalgamated, the court held that a consent order has contractual effect and can only be set aside on proof of fraud, collusion, mistake or illegality. Finding that the Defendant's affidavit demonstrated no such grounds and merely asserted that the orders were being implemented to his detriment, the court dismissed the application with costs to the Plaintiffs/Respondents.

Key legal issues

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01

Grounds for setting aside or varying a consent order

Holding

A party must demonstrate fraud, collusion, mistake or illegality; mere allegation that the orders are being implemented to its detriment is insufficient

Reasoning

The court applied the settled principle from Brooke Bond Liebig v Maliya and KCB v Benjoh Amalgamated that a consent order has contractual effect. The Applicant's supporting affidavit only asserted that the Plaintiffs were implementing the orders to his detriment and alleged bias and falsehood in the surveyor's report without evidentiary support. No element of illegality or fraud was demonstrated, so the application failed.

p. 4
02

Whether the court should order a fresh survey of the suit land

Holding

Refused; the Defendant offered no proof that his portion was interfered with or that the survey report was flawed

Reasoning

The Defendant alleged the surveyors were biased and the report was based on falsehood, but produced no evidence. The Plaintiffs noted the consent required any encroached party to apply to court for eviction, and no proof of encroachment was brought. In the absence of proof of a valid ground to disturb the consent, the request for a resurvey could not be sustained.

p. 3

Legal principles established

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  • A consent order binds the parties and can only be set aside where fraud, collusion, mistake, illegality or other grounds justifying setting aside a contract are demonstrated

Court orders

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  1. 1.The Amended Notice of Motion dated 9th November 2021 is dismissed
  2. 2.Costs of the application awarded to the Plaintiffs/Respondents
Jurisdiction invoked
Inherent powers of the court to review/set aside its own consent orders (order of December 5, 2018)

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, "Ondiek & others v Ominde (Suing on his own behalf and on behalf of Joel Ominde Ondiek (Deceased)) (Environment & Land Case 360 of 2015) [2022] KEELC 2649 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2649/eng@2022-07-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.