Kimani v Kimani & 2 others (Environment & Land Case E076 of 2022) [2023] KEELC 250 (KLR)
The bottom line
#A Nairobi court cancelled a land case settlement signed without one brother's knowledge, restoring the original owners and confirming consent orders can be undone for fraud.
What this practically means
#Executive summary
#Key legal issues
#Whether the incoming advocate was properly on record for the 2nd Defendant under Order 9 rule 9
The objection failed; Order 9 rule 9 does not apply because the Applicant never engaged the previous advocate, and engaging an advocate is a matter of fact which the Applicant's uncontradicted evidence established he never did
The rule protects advocates from mischievous clients who sack them after judgment. It applies only where a party had 'previously engaged an Advocate'. The Applicant swore, and maintained under cross-examination, that he never instructed K. Munaawa & Co. Advocates, and no evidence contradicted him. An advocate who was never engaged cannot be 'sacked'. The objection was therefore disallowed.
Whether the consent order adopted on 15th March 2022 should be set aside
Yes; the consent was set aside in its entirety because the Applicant never engaged the advocate who signed it, was not a party to the consent, was absent when it was adopted, and was allegedly never served with the pleadings
Although consent orders have contractual effect and bind parties, exceptions exist where the consent was obtained by fraud or collusion or where a party was ignorant of material facts. Here the court found the Applicant had not engaged the advocate who purportedly acted for him, the 1st Defendant had no written authority to plead for him, the Applicant was not a party to the consent, and service of pleadings was disputed without the process server being presented for cross-examination. These fundamental flaws justified setting aside the consent and all consequential orders.
Whether the court should discipline the advocate for filing a fraudulent consent
The court declined to exercise disciplinary powers, deferring to the Law Society of Kenya complaint already lodged by the Applicant
The court acknowledged jurisdiction to make orders against advocates to safeguard honourable conduct among officers of the court, but held that allegations of this magnitude require thorough investigations for which the court lacks time and resources. The disciplinary mechanisms under the law, already invoked by the Applicant, would give the advocate an opportunity to be heard.
Whether the application was incompetent given the Applicant's alleged admission of mental incapacity
The issue was not sustained; mental incapacity can only be verified by a certificate from a qualified mental health practitioner under the Mental Health Act, and a finding of incapacity would itself have been a further ground for setting aside the consent
The Plaintiff argued the Applicant had admitted struggling with mental illness. The court held that incapacity requires certification under the Mental Health Act and, in any event, a finding of incapacity would have strengthened rather than defeated the application to set aside the consent. The objection therefore had no adverse ramifications for the Applicant.
Legal principles established
#- A consent order has contractual effect and cannot be varied or discharged unless obtained by fraud or collusion, by an agreement contrary to the policy of the court, or where the consent was given without sufficient material facts or in misapprehension of material facts
- Failure to serve a party with pleadings is such a fundamental flaw that warrants the setting aside of any order made in that party's absence
- Order 9 rule 9 of the Civil Procedure Rules applies only where the party had previously engaged an advocate; engaging an advocate is a matter of fact
- Mental incapacity can only be verified by way of a certificate by a qualified mental health practitioner under the Mental Health Act
Court orders
#- 1.The consent order dated 10th March 2022 and the judgment thereof of 15th March 2022 be and is hereby set aside in its entirety together with all consequential orders
- 2.The Land Registrar, Nairobi is hereby directed to cancel all the entries made in the register of the property L.R. No. 209/9888, Nairobi Dam comprised in grant I.R. 39258, pursuant to the judgement of this court given on 15th March 2022 and reinstate Mark Nganga and Austin Maina Kimani as the owners as joint tenants forthwith
- 3.Regarding the collection of rent and management of the suit property, L.R. No. 209/9888, Nairobi Dam comprised in grant I.R. 39258, the position shall revert as it were prior to the judgement of 15th March 2022
- 4.The 2nd Defendant/Applicant shall have the costs of this application against the Plaintiff and the 1st Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit property L.R. No. 209/9888, Nairobi Dam; no specific provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani v Kimani & 2 others (Environment & Land Case E076 of 2022) [2023] KEELC 250 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/250/eng@2023-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.