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ELCDismissedNotice of Motion dated 21st December 2021 (arising from Kisii HCCC No. 10 of 2008 (OS) consolidated with Kisii HCCC No. 100 of 2008)· [2022] KEELC 3366 (KLR)

Okombo v Ajwang (Environment & Land Case 12 of 2022) [2022] KEELC 3366 (KLR)

High Court of Kenya
31 May 2022
1,795 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court dismissed an attempt to overturn an 11-year-old consent judgment because no fraud was proven and the delay was inexcusably long.

What this practically means

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Executive summary

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The applicant, John Odero Okombo, moved the High Court at Homa Bay by Notice of Motion dated 21st December 2021 seeking review, variation and/or setting aside of a consent judgment dated 13th July 2010 arising out of Kisii HCCC No. 10 of 2008 (OS) consolidated with Kisii HCCC No. 100 of 2008, and leave for the firm of Omondi, Abande and Company Advocates to come on record. The applicant asserted he never signed the consent judgment. The respondent, Samson Ooko Ajwang, in a replying affidavit and through grounds of opposition, maintained that the land is registered in the name of his late mother, that consolidation was allowed in the applicant's presence and acquiescence, and that the applicant had neither appealed against nor sought review of the consent judgment, besides habitually disobeying court orders. The court framed two issues: whether the conditions for setting aside the consent order and for leave were satisfied, and costs. Applying S M N v Z M S, Flora N. Wasike v Destimo Wamboko, Brooke Bond Liebig v Mallya and Kenya Commercial Bank v Specialised Engineering, Ongondo J held that a consent judgment has contractual effect and may only be set aside on grounds such as fraud or collusion, none of which the applicant evidenced. The court further found an inordinate, unexplained delay of over eleven years, contrary to Article 159(2)(b), and noted that upsetting the consent judgment might prejudice the applicant's pending appeal. Prayer 3 (leave to come on record) was declined, the court noting it could be effected under Order 9 Rules 5 and 6. The application was dismissed with costs to abide the appeal.

Key legal issues

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01

Whether the consent judgment of 13th July 2010 could be set aside

Holding

The application to set aside the consent judgment was dismissed because no evidence of fraud, collusion or illegality was placed before the court and the application was brought after an inordinate, unexplained delay of over eleven years.

Reasoning

The court applied settled authority that a consent judgment has contractual effect and may only be impeached on grounds justifying rescission of a contract, such as fraud, collusion, misapprehension or ignorance of material facts. The applicant particularised no such grounds. Further, the consent judgment dated 13th July 2010 was challenged only by an application lodged on 22nd December 2021, a delay of more than eleven years with no explanation, contrary to Article 159(2)(b) that justice shall not be delayed. Setting aside the consent judgment might also prejudice the applicant's pending appeal.

p. 4
02

Costs of the application

Holding

Costs were awarded to abide the appeal, following the dismissal of the application.

Reasoning

Having found that the application substantially lacked merit, the court exercised its discretion on costs in favour of the respondent, directing that costs abide the outcome of the appeal the applicant has already lodged from the ruling of Hon. L. Kaittany dated 2nd October 2013.

p. 4

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, such as fraud, collusion, or an agreement contrary to the policy of the court
  • A consent order entered into by counsel is binding on all parties and cannot be set aside or varied unless obtained by fraud or collusion, contrary to the policy of the court, or without sufficient material facts or in misapprehension
  • Inordinate delay, unexplained, is a ground for refusing relief; justice shall not be delayed under Article 159(2)(b)

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 21st December 2021 with costs to abide the appeal
  2. 2.Refusal of leave for the firm of Omondi, Abande and Company Advocates to come on record (Order 9 Prayer 3), the same to be effected pursuant to Order 9 Rules 5 and 6 of the Civil Procedure Rules, 2010

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 9 Rule 9(a); Order 9 Rules 5 and 6; Order 12 Rule 7; Order 45 Rule 1; Order 51 Rule 1; Order 51 Rule 16

Cases cited (10)

  • Protus Hamisi Wambada & Anor. –vs- Eldoret Hospital
    (2020) eKLR
  • Kenya Commercial Bank Ltd. –vs- Specialised Engineering Co. Ltd.
    (1982) KLR 485
  • S M N vs Z M S & 3 Others
    [2017] eKLR
  • Flora N. Wasike vs Destimo Wamboko
    [1988] eKLR
  • JM Mwakio vs Kenya Commercial Bank Ltd
    Civil Appeals 28 of 1982 and 69 of 1983
  • Purcell vs F C Trigell Ltd
    [1970] 2 All ER 671
  • Hirani vs Kassam
    (1952) 19 EACA 131
  • Brooke Bond Liebig Ltd vs Mallya
    [1975] EA 266
  • Board of Trustees National Social Security Fund v Micheal Mwalo
    [2015] eKLR
  • Utalii Transport Co. Ltd. & 3 Others –vs- NIC Bank Limited & Another
    (2014) eKLR
Jurisdiction invoked
Article 50(1) of the Constitution of Kenya, 2010; Sections 1A, 1B, 3A of the Civil Procedure Act (Cap 21); Order 9 Rule 9(a), Order 12 Rule 7, Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure 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, "Okombo v Ajwang (Environment & Land Case 12 of 2022) [2022] KEELC 3366 (KLR)", Case Analysis (2022). Notice of Motion dated 21st December 2021 (arising from Kisii HCCC No. 10 of 2008 (OS) consolidated with Kisii HCCC No. 100 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3366/eng@2022-05-31

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