Okombo v Ajwang (Environment & Land Case 12 of 2022) [2022] KEELC 3366 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the consent judgment of 13th July 2010 could be set aside
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.
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.
Costs of the application
Costs were awarded to abide the appeal, following the dismissal of the application.
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.
Legal principles established
#- 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
#- 1.Dismissal of the Notice of Motion dated 21st December 2021 with costs to abide the appeal
- 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
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.