Owuor & 2 others (Suing as the School Management Committee of Lukhuna Primary School) v Bunyasi & 5 others (Environment & Land Case 119 of 2010) [2022] KEELC 3389 (KLR)
The bottom line
#A Kenyan court refused to undo a settlement agreement but allowed a decade-old land case to be updated, showing consent orders are very hard to reverse.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent of 01/11/2021 withdrawing the suit against the 5th and 6th Defendants should be set aside
The application to set aside the consent fails; the consent was validly entered into under Order 24 Rule 2(1) once the suit was set down for hearing, and the 1st Defendant showed no vitiating factors
The court applied the settled law that consent orders have contractual effect and may only be set aside on grounds such as fraud, collusion, mistake or agreements contrary to public policy. The 1st Defendant was not a party to the consent, so it was not binding on him, but he adduced no evidence of fraud, collusion or public-policy infirmity. The plaintiffs had a right to discontinue the suit against parties they no longer wished to sue, and the 1st Defendant could still summon witnesses or seek joinder of parties if needed.
Whether the 1st Defendant's preliminary objection against the amendment application was competent
The preliminary objection was dismissed because the issues raised (estoppel, conflict, abuse of process, delay) require factual proof and are not pure points of law
Applying the Mukisa Biscuit definition, a preliminary objection must be a pure point of law argued on the assumption that pleaded facts are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised. The grounds raised by the 1st Defendant required evidentiary support, so they were improperly raised as a preliminary objection.
Whether the plaintiffs should be granted leave to amend the plaint over ten years after filing
The amendment application succeeds; amendments may be allowed at any stage, and the proposed amendments do not change the character of the plaintiffs' case
Section 100 of the Civil Procedure Act and Order 8 Rules 3 and 5 permit amendment at any time for determining the real questions in controversy. The court found the proposed amendments merely removed references to the withdrawn defendants and particularised fraud, misrepresentation and illegality against the remaining defendants, without altering the nature of the claim. Since the defendants had not yet testified, no prejudice was demonstrated, and they would have leave to file amended defences.
Whether the Attorney General is conflicted in representing the plaintiff school having previously been a defendant
The contention is flawed; the Attorney General is the constitutional legal representative of public institutions under Article 156 and Section 12 of the Government Proceedings Act, and no prejudice was shown
The court held the Attorney General had been sued in an official capacity under Section 12 of the Government Proceedings Act, and once the government department left the suit the Attorney General fell away automatically. As the plaintiff is a public institution, its lawful legal representative is the Office of the Attorney General under Article 156(4), a right that cannot be taken away. The 1st Defendant showed no prejudice, such as information passed over while the office acted as defendant.
Legal principles established
#- A consent order can only be set aside on grounds which would justify setting aside a contract, such as fraud, collusion or an agreement contrary to the policy of the court
- A non-party to a consent can only challenge it if it affects him and he shows it is vitiated by grounds justifying setting aside a contract
- A plaintiff is not obliged to maintain an action against a party it no longer wishes to sue; a defendant cannot compel the plaintiff to sue or retain particular parties, though the defendant may seek to add parties under Order 1 Rule 15
- A preliminary objection must raise a pure point of law on assumed pleaded facts; issues requiring ascertainment of facts or exercise of judicial discretion do not qualify
- Amendments to pleadings may be allowed at any stage of proceedings as long as they serve the determination of the real questions in controversy
Court orders
#- 1.The application dated 26/01/2022 seeking to set aside the consent dated 01/11/2021 is dismissed with costs to the Respondents
- 2.The preliminary objection dated 19/01/2022 against the amendment application is dismissed
- 3.The application dated 01/11/2021 for leave to amend the plaint is allowed
- 4.Plaintiffs given fourteen (14) days to amend their pleadings in terms of the annexed draft plaint and serve it within that period
- 5.Defendants have corresponding leave to file an amended Defence within fourteen (14) days of service
- 6.Plaintiffs have leave to file a Reply to the Amended Defence within seven (7) days of service
- 7.Suit to be mentioned on 13/10/2022 to confirm close of pleadings and take a date for further hearing
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 8 Rule 3 and Order 51 of the Civil Procedure Rules and Article 159 of the Constitution (amendment application); Sections 3A and 63(e) of the Civil Procedure Act (setting-aside application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owuor & 2 others (Suing as the School Management Committee of Lukhuna Primary School) v Bunyasi & 5 others (Environment & Land Case 119 of 2010) [2022] KEELC 3389 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3389/eng@2022-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.