Settim v Linturi (Environment & Land Case 166 of 2009) [2024] KEELC 3573 (KLR)
The bottom line
#The Environment and Land Court dismissed an attempt to undo a land sale consent order, confirming such agreements bind parties unless fraud or collusion is proven.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order was obtained by fraud or collusion
The applicant failed to prove fraud or collusion; her allegations against her former advocate and the defendant's counsel were unsubstantiated and she had never complained to the professional body governing advocates' conduct
Section 107 of the Evidence Act places the burden of proving fraud and collusion on the applicant. Correspondence showed advocates on both sides were engaged in negotiations leading to the Memorandum of Understanding and the consent. The applicant could not show at what point her advocate acted without instructions. Her serious allegations of fraud were unsupported, and she had never complained against her former advocate to the professional body, undermining her claim.
Whether the terms of the consent order were oppressive
The consent was not oppressive; the respondent's obligation to bear the cost of obtaining vacant possession compensated the applicant for the equal sharing of sale proceeds
The earlier Memorandum of Understanding, uncontested by the applicant, had already provided for sale of the property with Kshs. 25,000,000 to the defendant and the balance to the plaintiff. The impugned consent burdens the defendant with obtaining vacant possession, a burden ordinarily on the plaintiff as owner. The court held that a lawfully entered consent with an ostensible imbalance is not for the court to rewrite, since the undisclosed negotiation history underpins it.
Whether the applicant's inordinate delay of seven years and the manner of adoption of the consent vitiated the consent order
The application, brought seven years after adoption of the consent, was an abuse of process; the Deputy Registrar was properly empowered to adopt the consent
The applicant gave no satisfactory explanation for the seven-year delay; blaming her advocates was not excusable as the case belongs to her. Non-implementation of the consent was no ground to set it aside. Her claim that adoption by the Deputy Registrar was irregular failed because Order 49 Rule 3 of the Civil Procedure Rules allows the Deputy Registrar to adopt a consent.
Legal principles established
#- A consent order has contractual effect and is binding on the parties; it can only be set aside on grounds that would vitiate a contract - fraud, collusion, inconsistency with public policy, misapprehension or ignorance of material facts, or other just cause
- A court will not rewrite a lawfully entered consent merely because its terms appear to favour one party; the considerations behind a consent are largely not disclosed to the court
- An advocate with an undisputed retainer is deemed to act with the client's instructions and has authority to compromise the suit
- Non-implementation of a consent order is not a ground for setting it aside
- The Deputy Registrar of the Environment and Land Court is empowered by Order 49 Rule 3 of the Civil Procedure Rules to adopt a consent
Court orders
#- 1.The application dated 5th June 2023 is dismissed with costs to the respondent
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court under the Environment and Land Court Act (proceeding on a suit relating to land); application brought under the Civil Procedure Rules, including Order 45 and Order 49 Rule 3
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Settim v Linturi (Environment & Land Case 166 of 2009) [2024] KEELC 3573 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3573/eng@2024-04-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.