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ELCDismissedEnvironment & Land Case 529 of 2018· [2023] KEELC 17170 (KLR)

Kibuna v City Council of Nairobi & 4 others

Environment and Land Court
27 April 2023
LMLucy N. Mbugua
1,444 words in judgment
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The bottom line

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The Environment and Land Court refused to fast-track judgment based on a 2006 consent, ruling that unchallenged consent orders bind parties and disputes must proceed to full trial.

What this practically means

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Executive summary

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The plaintiff, Jedidah Ngina Kibuna, applied by notice of motion dated 6.12.2022 for judgment on admission against the 1st and 2nd defendants in terms of her re-amended plaint dated 18.1.2020, relying on a consent dated 28.7.2006 in which the 2nd defendant allegedly acknowledged having no claim over LR No. Nairobi Block 63/493. The 1st defendant opposed, saying liability was a matter for trial, though its written submissions supported the application to the extent of disclaiming costs. The 2nd defendant denied signing the consent, noting he had already transferred his interest to the 4th defendant. The 4th and 5th defendants argued the consent had no legal consequence against them and that the amended plaint sought relief only against them. The court framed a single issue: whether judgment on admission should be entered against the 1st and 2nd defendants. Applying Order 13 rules 1 and 2 and Express Automobile, it held the power is discretionary. It found the 2006 consent had been recorded as a court order and never set aside, and a consent order has contractual effect per Flora N. Wasike. Judgment on admission could not be entered where an un-set-aside consent judgment exists; failure to defend the re-amended plaint would only yield judgment on a liquidated claim under Order 10; and a 17-year unexplained delay, with trial underway, favoured focusing on the main trial. The application was dismissed with costs abiding the outcome of the suit.

Key legal issues

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Whether judgment on admission should be entered against the 1st and 2nd defendants

Holding

Application dismissed; judgment on admission refused because an un-set-aside consent order exists, the claim is not a liquidated demand under Order 10, and the 17-year delay was unexplained

Reasoning

The consent dated 28.7.2006 was recorded as an order of the court by the Deputy Registrar and has never been set aside or appealed. A consent order has contractual effect and binds the parties. Separately, failure to defend a re-amended plaint only yields judgment for liquidated claims under Order 10. With trial underway and a 17-year unexplained delay, discretion was properly exercised by refusing summary judgment and directing focus on the main trial.

p. 3

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • The power to enter judgment on admission is discretionary, not mandatory, and the court must examine the facts since it denies the sued party an appeal on merits

Court orders

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  1. 1.The plaintiff's application dated 6.12.2022 is dismissed
  2. 2.Costs of the application shall abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 13 rules 1 and 2
  • Civil Procedure RulesOrder 10

Cases cited (7)

  • Express Automobile Kenya Limited v Kenya Farmers Association Limited & another
    [2020] eKLR

    Admission must be conscious and deliberate; power to enter judgment on admission is discretionary

  • Endebess Development Company Limited v Coast Development Authority
    [2018] eKLR
  • Momanyi v Hatimy & Another
    [2003] E.A
  • Choitram v Nazari
    [1984] KLE 327
  • Cassam v Sachchania
    [1982] KLR 191
  • Flora N. Wasike v Destino Wamboko
    [1988] eKLR

    Consent judgment or order has contractual effect; set aside only on grounds justifying setting aside a contract

  • Peter Karanja Kamani v Isaac Mwangi Kimani
    [2018] eKLR

    Under Order 10, judgment on failure to defend is entered only in relation to a liquidated claim

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; judgment on admission under Order 13 rules 1 and 2 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, "Kibuna v City Council of Nairobi & 4 others", Case Analysis (2023). Environment & Land Case 529 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17170/eng@2023-04-27

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