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ELCAllowedEnvironment and Land Miscellaneous Application 56 of 2021· [2023] KEELC 16523 (KLR)

Strategic Urembo Sacco Society Ltd v Badawi; Meli (Interested Party)

Environment and Land Court of Kenya
21 March 2023
NMN. A. Matheka
2,705 words in judgment
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The bottom line

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A Mombasa court set aside consent orders over a Mombasa apartment because the husband hid that it was matrimonial property where his wife and children lived.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (Matheka J) determined a notice of motion dated March 11, 2022 brought by Shadia Mohamed Kipkorir Meli, the intended interested party, under Sections 1A, 1B, 34, 68 and 45 of the Civil Procedure Act and Orders 1, 45 and 51 of the Civil Procedure Rules. She sought to be enjoined as an interested party in ELC Misc. Application No 56 of 2021 between Strategic Urembo Sacco Society Ltd and Haider Sulayman Badawi, and to set aside consent orders adopted on January 24, 2022 and issued on January 27, 2022, which granted the Sacco access to and vacant possession of apartment CR 62863/1 on Subdivision 16900, Original 8822/3 Section I Mainland North, for valuation and sale. She alleged the consent was procured by fraud and non-disclosure, that the property was matrimonial property where she lived with her two children, that Kadhi's Court Petition No E184 of 2021 for division of matrimonial property was pending with restraining orders in place, and that no charge existed in favour of the Sacco. The Respondents opposed, citing Section 6 of the Civil Procedure Act and arguing she was not party to the consent. The court applied Brooke Bond Liebig v Mallya and Flora N. Wasike v Destimo Wamboko, found non-disclosure of material facts, set aside the consent orders, enjoined the applicant as interested party, granted her leave to file a response, and awarded her costs against the Respondents.

Key legal issues

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01

Setting aside consent orders for non-disclosure of material facts

Holding

The consent was set aside because the 2nd Respondent concealed that the suit property was matrimonial property in which the applicant and her children resided, and where Kadhi's Court proceedings were pending.

Reasoning

The court restated the Brooke Bond Liebig and Flora N. Wasike principles that consent judgments bind parties and can only be set aside on fraud, collusion, absence of consensus, public policy or grounds warranting rescission of a contract. It found as an undisputed fact that Kadhi's Court Petition No E184 of 2021 seeking division of matrimonial property was ongoing, and that the 1st Respondent concealed the matrimonial character of the property and the applicant's residence when entering the consent, satisfying the non-disclosure ground.

02

Joinder of an interested party

Holding

The applicant was properly enjoined as an interested party given her asserted proprietary and matrimonial interest in the suit property.

Reasoning

The applicant claimed matrimonial beneficial interest, resided in the property with her children, and had a caution registered against the title and pending Kadhi's Court proceedings. The court granted the prayer enjoining her as an interested party and leave to file a response to the pending Notice of Motion.

p. 5

Legal principles established

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  • A consent order may be set aside where procured through fraud, non-disclosure of material facts, mistake, or a reason which would enable a court to set aside an agreement.

Court orders

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  1. 1.Shadia Mohamed Kipkorir Meli enjoined as an Interested Party in Mombasa ELC Misc. Application No 56 of 2021
  2. 2.The consent orders given on January 24, 2022 and issued on January 27, 2022, and any decree thereof, vacated and/or set aside
  3. 3.The Interested Party granted leave to file her response to the 1st Respondent's Notice of Motion dated December 9, 2021 and any other documents
  4. 4.Costs of the application borne by the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 34, 68, 45, 6
  • Civil Procedure RulesOrder 1 Rule 10(2), Order 45, Order 51 Rule 1

Cases cited (2)

  • Brooke Bond Liebig vs Mallya
    (1975) EA 266

    Consent judgments can be set aside only on fraud, collusion, no consensus, public policy or contract-rescission grounds.

  • Flora N. Wasike vs Destimo Wamboko
    (1988) eKLR

    Consent orders binding on parties and those claiming under them; varied only for fraud, collusion or non-disclosure of material facts.

Jurisdiction invoked
Sections 1A, 1B, 34, 68 and 45 of the Civil Procedure Act (Cap 21) and Order 1 Rule 10(2), Order 45 and Order 51 Rule 1 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, "Strategic Urembo Sacco Society Ltd v Badawi; Meli (Interested Party)", Case Analysis (2023). Environment and Land Miscellaneous Application 56 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16523/eng@2023-03-21

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