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ELCDismissedEnvironment & Land Case E005 of 2023· [2023] KEELC 18136 (KLR)

PASP & another v EPCP (Acting as Next Friend of SAP - Minor)

Environment and Land Court
21 June 2023
NMN.A. Matheka
1,622 words in judgment
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The bottom line

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A Kenyan court refused to make a family's property sale agreement binding because it was filed without an actual court case behind it.

What this practically means

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Executive summary

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The applicants, the parents and registered natural guardians of a minor, applied by notice of motion dated 23rd May 2023 for the adoption as a court order of a consent dated 8th May 2023, and for an urgent decree. They explained that the minor's property, Flat No. XX, Tenth Floor, Block C, Second Tower, Mombasa/Block XXVI/452, was making a loss and they wished to sell it and reinvest the proceeds in the child's best interest, with a purchaser already interested and the completion date expired. The respondent, the minor's mother acting as next friend, entered appearance through the same advocates as the applicants but filed no response. The court, Matheka J, framed the sole issue as whether the consent should be adopted. It set out Order 25 Rule 5(1) of the Civil Procedure Rules, Rule 35 of the ELC Practice Directions, and authorities including the Supreme Court's decision in Geoffrey M. Asanyo, confirming that a consent becomes a court order only upon formal adoption. The court found no underlying suit on which the application was predicated, could not verify the facts without oral evidence, could not confirm the next friend's status or rule out fraud or collusion, and could not satisfy itself that the consent served the minor's best interest. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the consent dated 8th May 2023 should be adopted as an order of the court

Holding

The application for adoption was dismissed because it was made without an underlying suit and the court could not verify the consent or the minor's best interest

Reasoning

The court reviewed Order 25 Rule 5(1) CPR, the ELC Practice Directions Rule 35, and authorities on adoption of consents. It found no suit upon which the application was predicated, the next friend's status unexplained, no response filed, and no oral evidence to verify facts. The court could not rule out fraud or collusion and could not satisfy itself the consent served the minor's best interest.

p. 4

Legal principles established

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  • A consent only becomes binding and attains legal character once adopted as an order or judgment of the court
  • A filed consent must be verified and adopted by the court before it becomes a court order

Court orders

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  1. 1.Application dated 23rd May 2023 seeking adoption of the consent dated 8th May 2023 dismissed
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159(2)(c)
  • Civil Procedure Rules, 2010Order 25 Rule 5(1)
  • Practice Directions on Proceedings in the Environment and Land Court, Gazette Notice No. 5178 of 25 July 2014Rule 35

Cases cited (4)

  • Church Road Development Co. Ltd vs Barclays Bank of Kenya & Another
    HCCC No. 296 of 2006

    Consents do not become part of court proceedings until recorded and signed by the Deputy Registrar

  • Simon Ayiemba v Kenya Industrial Estates Ltd
    Civil Appeal No. 5 of 2001

    The two ways a consent can be legally accepted by the court

  • Geoffrey M. Asanyo & Others v The Attorney General
    [2018] eKLR

    A consent becomes an order of the court only once formally adopted; court then becomes functus officio

  • Pius Kazungu Mweni & 12 others v Jefwa Nyale & another
    [2020] eKLR

    A filed consent must be verified and adopted by the court before it is a court order

Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; application under Order 25 Rule 5(1) of the Civil Procedure Rules, 2010, informed by Article 159(2)(c) of the Constitution

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, "PASP & another v EPCP (Acting as Next Friend of SAP - Minor)", Case Analysis (2023). Environment & Land Case E005 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18136/eng@2023-06-21

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