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ELCPartially AllowedMRG ELC NO. 77 OF 2018· [2023] KEELC 285 (KLR)

Ndambo (Suing for and on Behalf of the Estate of Ndambo Ngungu- Deceased) v Gitau (Sued for and on Behalf of the Estate of Gitau Ngungu - Deceased) (Environment & Land Case 77 of 2018) [2023] KEELC 285 (KLR)

Environment and Land Court of Kenya
26 January 2023
LGL. Gacheru
3,477 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Murang'a court cancelled a land consent order because it was tainted by fraud or collusion, confirming consent judgments can be undone on those grounds.

What this practically means

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Executive summary

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By Notice of Motion dated 7th February 2022, the Defendant/Applicant sought leave for Tim Kariuki & Co Advocates to come on record, a stay and setting aside of the consent order of 11th October 2018 and the decree of 8th November 2018, and unconditional leave to defend. The suit arose from a dispute over Land Parcel No. 17/IGANJO/1841; the Applicant's late father had obtained judgment for 25 acres in Murang'a CMCC No. 534 of 1995, yet the land was consented to the Plaintiff in the present suit nine days after filing. The Applicant denied ever instructing M/S Mwaniki Warima & Co Advocates, noting the consent was filed a day before that firm's Notice of Appointment. The Plaintiff opposed, alleging lengthy family negotiations culminating in the consent, but adduced no evidence of them. L. Gacheru J granted leave under Order 9 Rule 9 for the incoming firm, finding the outgoing firm had not responded despite service. On the consent, the court applied the settled principle that consent judgments may be set aside only for fraud, collusion, or grounds justifying rescission of a contract. Finding that the consent would fly in the face of the 1997 judgment in the Applicant's father's favour, that the alleged negotiations were unsubstantiated, and that the impugned firm was not on record when the consent was adopted, the court held the consent was obtained by fraud and/or collusion, set it aside together with the resulting decree, but denied prayer 5. The application was allowed in favour of the Defendant.

Key legal issues

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01

Whether leave should be granted for Tim Kariuki & Co Advocates to come on record

Holding

Leave granted as the Applicant complied with Order 9 Rule 9 of the Civil Procedure Rules

Reasoning

Order 9 Rule 9 provides two modes for change of advocates after judgment: leave of court or consent between incoming and outgoing advocates. The outgoing firm was served but neither entered appearance nor responded. The court aligned itself with James Ndonyu Njogu v Muriuki Macharia on the mandatory nature of the provision and found the Applicant compliant, granting leave and deeming the new firm's pleadings properly on record.

p. 5
02

Whether the consent of 11th October 2018 and the decree of 8th November 2018 should be set aside

Holding

Set aside for fraud and/or collusion

Reasoning

The consent was filed on 11th October 2018, before the Notice of Appointment of M/S Mwaniki Warima & Co Advocates filed on 12th October 2018, so the firm was not on record when the consent was adopted. The Respondent alleged lengthy family negotiations but tabled no evidence. The consent would fly in the face of the judgment in Murang'a CMCC 534 of 1995 in favour of the Applicant's father. The court found the consent obtained by fraud and/or collusion and set it aside.

p. 6

Legal principles established

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  • A consent judgment or order can only be set aside on grounds such as fraud, collusion, or reasons which would justify setting aside or rescinding a contract
  • Change of advocates after judgment has been entered requires either leave of court or a consent between incoming and outgoing advocates under Order 9 Rule 9 of the Civil Procedure Rules

Court orders

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  1. 1.Leave granted to the Law Firm of M/S Tim Kariuki & Co Advocates to come on record for the Defendant/Applicant in place of M/S Mwaniki Warima & Co Advocates, with all pleadings filed by that firm deemed properly on record
  2. 2.The consent dated 11th October 2018, adopted as an Order of Court on the same day, set aside
  3. 3.The Decree issued on 8th November 2018 set aside
  4. 4.Prayer No. 5 (unconditional leave to defend and file defence) denied

Authorities

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Legislation

  • Constitution of KenyaArticles 48, 50(1), 159(2)(a)
  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (8)

  • Tom Kusienya & Others v Kenya Railways Corporation & others
    [2013] eKLR
  • Delphis Bank Ltd v Channan Singh Chatthe & 6 others
    Civil Application No. 136 of 2005; [2005] eKLR
  • Microsoft Corporation vs Mitsumi Computer Garage Ltd & another
    High Court Civil Case No. 810 of 2001; [2001] eKLR
  • James Ndonyu Njogu v Muriuki Macharia
    ELCA 17 of 2016; [2020] eKLR
  • Board of Trustees National Social Security Fund versus Micheal Mwalo
    [2015] eKLR
  • Brooke Bond Liebig vs Mallya
    (1975) EA 266
  • Flora N. Wasike vs Destimo Wamboko
    [1988] eKLR
  • Peter Nganga Kimani
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application under Order 9 Rule 9 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, "Ndambo (Suing for and on Behalf of the Estate of Ndambo Ngungu- Deceased) v Gitau (Sued for and on Behalf of the Estate of Gitau Ngungu - Deceased) (Environment & Land Case 77 of 2018) [2023] KEELC 285 (KLR)", Case Analysis (2023). MRG ELC NO. 77 OF 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/285/eng@2023-01-26

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