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)
The bottom line
#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
#Executive summary
#Key legal issues
#Grounds for setting aside or varying a consent order
A party must demonstrate fraud, collusion, mistake or illegality; mere allegation that the orders are being implemented to its detriment is insufficient
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.
Whether the court should order a fresh survey of the suit land
Refused; the Defendant offered no proof that his portion was interfered with or that the survey report was flawed
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.
Legal principles established
#- 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
#- 1.The Amended Notice of Motion dated 9th November 2021 is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.