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ELCDismissedKericho ELC 76/2007· [2024] KEELC 3776 (KLR)

Mutai (Suing as a legal representative of Kiplangat Arap Korir) v Korir (Sued as a personal representative of the Estate of Joseph Kiplangat Kirui) & 3 others (Environment & Land Case 76 of 2007) [2024] KEELC 3776 (KLR)

Environment and Land Court
25 April 2024
5,133 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed attempts to undo a 2018 land settlement, confirming that signed consent orders bind parties unless fraud is proven.

What this practically means

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Executive summary

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Two applications by the Plaintiff/Applicant, Nehemiah Kipkoech Mutai, legal representative of the deceased Plaintiff's estate, were heard simultaneously and dismissed. The first, dated 25th July 2022 under Order 12 rule 7 of the Civil Procedure Rules, sought to set aside a consent order of 16th July 2018 withdrawing the suit against the 2nd and 3rd Defendants, to reinstate the suit, and to revoke a grant of letters of administration issued by the Principal Magistrate's Court. The second, dated 10th March 2023, sought a declaration that the 2nd Defendant committed perjury, orders for her investigation and arrest, a declaration that Gazette Notice No. 15176 of 26th October 2012 was illegal, cancellation of titles Transmara/Kimintet 'D' 1426 and 1427 and reinstatement of the mother title. The Applicant alleged the consent was entered without his instructions and that subdivision occurred during the pendency of the suit in contempt of a court decision. The 2nd Defendant maintained the consent was recorded in open court before the Plaintiff's counsel and fully implemented by issuance of title, that the court had become functus officio, and that the applications were an abuse of process. The court framed three issues: revocation of the grant, setting aside the consent, and functus officio. It held it lacked jurisdiction to revoke the grant, that being a probate matter; that no fraud, collusion or misapprehension vitiated the consent, counsel having authority to compromise; and that the consent order having been perfected by issuance of title, the court was functus officio. Both applications were dismissed with costs.

Key legal issues

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01

Whether the ELC can revoke a grant of letters of administration

Holding

It cannot; revocation of grants is a probate matter reserved to the probate court

Reasoning

The court held that under Section 13 of the Environment and Land Court Act its mandate covers land use disputes, but the issues in dispute were deeply rooted in the succession cause, which only a probate court can determine. It therefore lacked jurisdiction to revoke the grant issued by the Principal Magistrate's Court.

02

Whether the consent order of 16th July 2018 should be set aside

Holding

No; no fraud, collusion or misapprehension was demonstrated and counsel had authority

Reasoning

Applying Flora Wasike, Hirani v Kassam and KCB v Specialized Engineering, the court held that a consent order can only be vitiated on grounds justifying rescission of a contract. No evidence showed counsel lacked authority; the consent was recorded in open court after hearing evidence and was clear and unequivocal, so the inherent jurisdiction was not deserved.

p. 9
03

Whether the court is functus officio

Holding

Yes; the consent order was withdrawn and perfected by subsequent issuance of title

Reasoning

Relying on the Jersey Evening Post test adopted by the Supreme Court, the court found that the suit against the 2nd and 3rd Defendants had been withdrawn by consent and the 2nd Defendant had since been issued with a title deed, perfecting the consent order. Proceedings being finally concluded, the court could not review or alter its decision.

p. 9

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
  • A court becomes functus officio once proceedings are finally concluded and its judgment or order perfected
  • A court without jurisdiction has no power to take any further step

Court orders

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  1. 1.Both the applications dated 25th July, 2022 and 10th March 2023 dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 51 Rules 1, 3 and 4
  • Civil Procedure ActSection 11
  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure ActSection 99
  • Constitution of KenyaArticles 40, 159, 165
  • Penal CodeSection 108(1)
  • Penal CodeSection 80
  • Land Registration ActSection 80
  • Environment and Land Court ActSection 13

Cases cited (23)

  • Catherine Kigasia Kivai v Ernest Ogesi Kivai & 5 Others
    CV Suit No. 20 of 2018 (eKLR)
  • Shah v Mbogo
    (1976) EA 116
  • Flora Wasike v Destimo Wamboko
    (1982-1988) 1 KLR 625
  • Hirani v Kassam
    (1952) 19 EACA 131
  • Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd
    (1982) KLR P. 485
  • Paul Kiplangat Keter v John Koech
    [2021] eKLR
  • Florence A. Odhiambo v Wananchi Telcom Limited & another
    [2017] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Republic v Kisumu District Land Officer & another
    [2010] eKLR
  • Super Nova Properties Limited & another v District Land Registrar Mombasa & 2 others; Kenya Anti-Corruption Commission & 2 others (interested parties)
    [2018] eKLR
  • David Omwenga Maobe v Republic
    [2015] eKLR
  • James Mulinge v Freight Wings Ltd & 3 others
    [2016] eKLR
  • Lucy Wanjiru Njunge & 2 others v Job Mwangi Macharia & 9 others
    [2005] eKLR
  • Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 Others
    [2014] eKLR
  • Charles Kiptarbei Birech v Paul Waweru Mbugua & another
    [2021] eKLR
  • John Waruinge Kamau v Phoenix Aviation Limited
    [2015] eKLR
  • Muchanga Investment Limited v Safaris Unlimited (Africa) Ltd & 2 Others
    Civil Appeal No. 25 of 2002 [2009] KLR 229
  • Stephen Somek Takwenyi & Another v David Mbuthia Githare & 2 Others
    Nairobi (Milimani) HCCC No. 363 of 2009
  • Telkom Kenya Limited v John Ochanda
    [2014] eKLR
  • Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others
    [2013] eKLR
  • The Owners of the Motor Vessel "Lilian S" v Caltex (Kenya) Ltd
    [1989] KLR 1
  • Board of Trustees National Social Security Fund v Micheal Mwalo
    [2015] eKLR
  • Jersey Evening Post Limited vs Al Thani
    [2002] JLR 542
Jurisdiction invoked
Section 13 of the Environment and Land Court Act; Articles 40, 159 and 165 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, "Mutai (Suing as a legal representative of Kiplangat Arap Korir) v Korir (Sued as a personal representative of the Estate of Joseph Kiplangat Kirui) & 3 others (Environment & Land Case 76 of 2007) [2024] KEELC 3776 (KLR)", Case Analysis (2024). Kericho ELC 76/2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3776/eng@2024-04-25

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