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ELCDismissedNot stated in the judgment (Notice of Motion dated 6th October 2023)· [2024] KEELC 819 (KLR)

Njabikha & another v Njabhika & 3 others (Environment & Land Case 5 of 2019) [2024] KEELC 819 (KLR)

Environment and Land Court of Kenya
22 February 2023
ECE.C Cherono
1,176 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The defendants/applicants moved the Environment and Land Court at Bungoma by Notice of Motion dated 6th October 2023 seeking to set aside orders issued on 27th July 2023 and to vacate a hearing date of 23rd October 2023. Their position was that the suit had been settled by a Settlement Agreement dated 16th September 2021 adopted as a consent order on 14th December 2021, so the matter could not be listed for hearing. The plaintiff/respondent opposed through a replying affidavit sworn 10th November 2023, arguing the application was an abuse of process; that the defendants had not executed the settlement consent; and that the 3rd defendant had failed to deposit settlement funds into the advocates' account for the estate. The plaintiff had itself filed an application dated 8th February 2022 to set aside the consent orders, still pending. The court, per E.C Cherono J, applied the settled law on consent judgments (Kasmit Wesonga Ongoma, Flora N. Wasike, Hirani v Kassam) that a consent judgment has contractual effect and binds unless set aside on grounds justifying setting aside a contract. The court held the consent judgment remained valid and enforceable, and further found on the record that the 23rd October 2023 date was for the plaintiff's pending 8th February 2022 application, not the main suit. The court struck out the applicants' application with costs in the cause and directed compliance with the directions issued on 14th February 2022 in respect of the 8th February 2022 application. Note: the dateline reads 22nd February 2023, which is internally inconsistent with the 2023 application dates and appears to be a typographical error.

Key legal issues

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01

Enforceability of a consent judgment and whether the suit may be listed for hearing

Holding

The suit was concluded by the consent judgment of 14th December 2021 which has not been set aside and remains valid and enforceable; the matter is therefore not open for trial and cannot be fixed for hearing of the main suit

Reasoning

The court reaffirmed the settled law (Kasmit Wesonga Ongoma, Flora N. Wasike, Hirani v Kassam) that a consent judgment is contractual in effect, binding, and settable aside only on grounds such as fraud, collusion, or non-disclosure of sufficient material facts. No such ground had been established; the pending application of 8th February 2022 seeking to set aside the consent orders was yet to be determined, so the consent orders stood.

p. 3
02

Nature of the 23rd October 2023 hearing date

Holding

The hearing date fixed on 27th July 2023 was for the plaintiff's pending application dated 8th February 2022, not for the main suit, so the application to vacate it was misconceived

Reasoning

On perusal of the record the court found that an application dated 8th February 2022 by the plaintiff seeking to set aside the orders of 16th December 2021 remained undetermined. Directions had been issued for its canvass but parties opted to negotiate and failed to settle. The court therefore held that the scheduled date related to that pending application, not the main suit as the applicants assumed.

p. 3

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 a contract aside, or if certain conditions remain to be fulfilled and are not carried out
  • An order made in the presence and with the consent of counsel is binding on all parties and cannot be varied or discharged except on limited grounds such as fraud, collusion, or absence of sufficient material facts

Court orders

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  1. 1.The applicants' Notice of Motion dated 6th October 2023 struck out with costs in the cause
  2. 2.Parties to comply with the directions of the court issued on 14th February 2022 in relation to the application dated 8th February 2022 forthwith

Authorities

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Legislation

  • Constitution of Kenya 2010Article 159(2)
  • Environment and Land Court Act 2011Section 20
  • Civil Procedure Act Cap 21 Laws of KenyaSection 59C
  • Civil Procedure Rules 2010Order 46 Rule 20
  • Civil Procedure Rules 2010Order 50 Rule 1

Cases cited (7)

  • Samuel Mbugwa Ikumbu v Barclays Bank of Kenya Limited
    (2015) eKLR
  • Board of trustees National Security Social Fund v Micheal Mwalo
    (2015) eKLR
  • Paragon Electronic Limited v Fatma Musee
    (2022) eKLR
  • Geoffery M. Asanyo & 3 others v Attorney General
    (2018) eKLR
  • Kasmit Wesonga Ongoma & another v Wanga
    [1987] eKLR
  • Flora N. Wasike v Jestimo Wamboko
    [1988] eKLR
  • Hirani v Kassam
    [1952] 19 EACA 131
Jurisdiction invoked
Article 159(2) of the Constitution of Kenya 2010; Section 20 of the Environment and Land Court Act 2011; Section 59C of the Civil Procedure Act Cap 21; Order 46 Rule 20 and Order 50 Rule 1 of the Civil Procedure Rules 2010

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, "Njabikha & another v Njabhika & 3 others (Environment & Land Case 5 of 2019) [2024] KEELC 819 (KLR)", Case Analysis (2023). Not stated in the judgment (Notice of Motion dated 6th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/819/eng@2024-02-22

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