Ndatani Enterprises Company Ltd & another v Railways Housing Cooperative Society Ltd; Mahaga & 2 others (Interested Parties) (Environment & Land Case 224 of 2009) [2023] KEELC 509 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to undo a 2017 settlement, ruling that consent judgments bind parties and can only be set aside for proven fraud or non-disclosure.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent judgment of 31.10.2017 should be set aside
The application fails; the defendants bore the burden of proving fraud or non-disclosure and did not discharge it
The defendants alleged non-disclosure of transfers of Mavoko plots and unlawful alienation despite caveats. The plaintiffs produced green cards and title deeds showing registration status predated the suit or remained in the plaintiffs' name. Having had seven years before the consent to conduct due diligence, and given the consent is nearly fully implemented, setting it aside would jeopardize the rights of many innocent purchasers.
Whether the interim injunction orders of 15.3.2010 could replace the consent judgment
No; interim injunctions expire when judgment is entered
The orders of 15.3.2010 were interlocutory injunctions granted after the defendants' application was allowed and the plaintiffs' dismissed. Their lifespan ended upon entry of the consent judgment and decree. Reinstating them a decade later would create untold disruption to parties who have settled on the suit parcels.
Whether the intended interested parties could be joined and the consent set aside at their instance
Their applications were dismissed
The purchasers bought plots through the defendants, their agent, since 2003. The consent dealt with large blocks and numbers of plots, with the defendants supplying member lists. Individual plot allocation disputes are between the purchasers and their agent. Twenty years on, the interested parties cannot disown their agent's compromise, and their claims should be directed at the defendants.
Legal principles established
#- A consent judgment has contractual effect and can only be set aside on grounds which would justify setting a contract aside
- A consent order is binding and cannot be set aside unless obtained by fraud, contrary to the policy of the court, or without sufficient material facts
- Interlocutory injunctions lapse upon the delivery of judgment and cannot substitute a judgment
- Parties are bound by compromises agreed in litigation; they have the force of law and cannot be discarded unilaterally
Court orders
#- 1.The defendants' applications dated 9th March 2021 and 28th March 2022 are dismissed with costs to the plaintiffs
- 2.The three applications of the intended interested parties dated 5th April 2022, 16th May 2022 and 15th July 2022 are dismissed with costs to the plaintiffs
- 3.The physical court file to be organized into three volumes for efficiency, with handwritten proceedings placed at the top
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (Environment and Land Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndatani Enterprises Company Ltd & another v Railways Housing Cooperative Society Ltd; Mahaga & 2 others (Interested Parties) (Environment & Land Case 224 of 2009) [2023] KEELC 509 (KLR)", Case Analysis (2023). ELC Case No. 224 of 2009 (Machakos High Court Case No. 224 of 2009, consolidated with ELC Nos. 352 of 2009 and 353 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/509/eng@2023-01-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.