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ELCDismissedKisumu Environment and Land Court Appeal (from Kisumu CMC ELC No. 368 of 2020)· [2024] KEELC 459 (KLR)

Kisiara v Onyango & 4 others (Environment and Land Appeal E043 of 2022) [2024] KEELC 459 (KLR)

Environment and Land Court of Kenya
1 February 2024
4,761 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that land occupants must be heard before a consent decree can evict them, and struck down a secret deal that bypassed them.

What this practically means

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Executive summary

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The Appellant sued the 5th Respondent in Kisumu CMC ELC No. 368 of 2020 for specific performance of a sale agreement over Plot No. 3261 or, alternatively, a refund. The 5th Respondent admitted the claim but offered to transfer instead a property registered in her own name (the suit property), where the 1st to 4th Respondents, her stepsons, resided. A consent of 5th November 2020, endorsed as judgment and decreed on 21st December 2020, provided for transfer of the suit property and eviction of its occupants. The Appellant was registered as owner on 1st February 2021. The 1st to 4th Respondents, who were unaware of the suit, filed a pending adverse possession suit and then applied in the lower court to be joined and to set aside the consent decree. By a ruling of 26th October 2022 the trial magistrate allowed the application, holding that persons who would be affected by the consent ought to have been involved. On first appeal, Okong'o J affirmed. On joinder, the court held that the Respondents' occupation gave them an interest that the decree would affect, though they should properly have been joined as interested parties. On the setting aside limb, applying the Wasike and Brooke Bond Liebig principles, the court found collusion between the Appellant and the 5th Respondent to evict the Respondents without a hearing, judgment entered without full facts, and a consent contrary to the policy of the court that no person be condemned unheard. The appeal was dismissed with costs to the 1st to 4th Respondents.

Key legal issues

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01

Whether the 1st to 4th Respondents were properly joined to the lower court suit

Holding

Yes; they had an interest in the suit property which would be affected by the decree, and should have been joined as interested parties to be heard on the 5th Respondent's prayer to transfer the suit property

Reasoning

The court's power to join a party is discretionary and must be exercised judiciously. An applicant must show a stake or interest in the subject matter. Although the lower court suit concerned Plot No. 3261, the 5th Respondent's statement of admission sought substitution of the suit property and the consent decree directed eviction of the 1st to 4th Respondents who were residing there and were not parties. They were therefore necessary parties whose interest would be affected. The court found no error in the joinder, though it opined they should have been joined as interested parties rather than defendants.

p. 7
02

Whether the consent judgment of 5th November 2020 was properly set aside

Holding

Yes; collusion between the Appellant and the 5th Respondent to evict the Respondents without a hearing, entry of judgment without full facts, and a consent contrary to the policy of the court justified setting it aside

Reasoning

Applying Wasike v. Wamboko and Brooke Bond Liebig v. Mallya, a consent judgment can only be set aside on grounds justifying setting aside a contract. The court found collusion because both the Appellant and the 5th Respondent knew the Respondents occupied the suit property and used the consent as a shortcut to obtain vacant possession without filing a suit for possession. The court entered judgment without being seized of the full facts, and the consent offended the policy that no person be condemned unheard.

p. 8

Legal principles established

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  • A consent judgment has contractual effect and can only be set aside on grounds which would justify setting aside a contract
  • An order made in the presence and with the consent of counsel is binding on all parties and those claiming under them, and cannot be varied or discharged except on grounds such as fraud, collusion, ignorance of material facts, or for a reason which would justify setting aside an agreement
  • A person with an identifiable stake or interest in the subject matter of a suit who will be affected by its outcome ought to be joined to be heard
  • The court will not condemn a person without a hearing; a consent that effects eviction of occupants who were never parties or heard is contrary to the policy of the court

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal to the 1st to 4th Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 3
  • Civil Procedure RulesOrder 12 rule 7
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2 (definition of interested party)

Cases cited (10)

  • Divisional Integrated Development Programmes Co. Ltd. v. Nelson Mbuva Kithuka & another
    [2022]eKLR
  • Fredrick Atanas Ashiono v. Aggrey Sevensson Lihanda
    [2014]eKLR
  • Communications Commission of Kenya and 4 Others v. Royal Media Services Limited & 7 Others
    [2014] eKLR
  • Meme v. Republic
    [2004] 1 EA 124
  • Deported Asians property Custodian Board v. Jafier Brothers Limited
    (1999)1E.A 55 (SCU)
  • Pravin Bowry v. John Ward and another
    [2015] eKLR
  • Werrot and Company Ltd. and others v. Andrew Doughlas Gregory and others
    Nairobi (Milimani) HCCC No. 2363 of 1998 (1998) LLR 2848 (CCK)
  • Wasike v. Wamboko
    [1988] KLR 429
  • Brooke Bond Liebig (T) Ltd. v. Mallya
    [1975] E.A 266
  • Hirani –vs- Kassam
    [1952] 19 E.A.C.A 131
On appeal from
Principal Magistrate's Court, Kisumu (Kisumu CMC ELC No. 368 of 2020)
ELC No. 368 of 2020
Jurisdiction invoked
First appeal from the magistrates' court under the Civil Procedure Rules (application having been brought under Order 1 rule 3 and Order 12 rule 7 of the Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kisiara v Onyango & 4 others (Environment and Land Appeal E043 of 2022) [2024] KEELC 459 (KLR)", Case Analysis (2024). Kisumu Environment and Land Court Appeal (from Kisumu CMC ELC No. 368 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/459/eng@2024-02-01

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