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ELCDismissedMKS. ELC. CASE NO. 181 OF 2012· [2024] KEELC 4001 (KLR)

Mulani v Mulani; Safaricom Investment Co-operative Society Limited (Interested Party) (Environment & Land Case 181 of 2012) [2024] KEELC 4001 (KLR)

Environment and Land Court
21 May 2024
COChristine Ochieng
2,737 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Machakos Environment and Land Court refused to undo a 2022 order, holding that a party who consents to another joining a case cannot later object to that party participating.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on the Plaintiff's Notice of Motion dated 5th September 2023. The Plaintiff sought a stay of proceedings, setting aside of the proceedings and orders of 23rd June 2022, and reservation of a judgment date. Her complaint was that although the Interested Party's application for joinder was unopposed and limited to joinder, the court on 23rd June 2022 granted, of its own motion, leave for the Interested Party to file its defence and documents, and the matter had since proceeded to pretrial directions. The Defendant and the Interested Party opposed, arguing the orders flowed from a consent on joinder and that the court acted within its inherent powers under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act. The court framed a single issue: whether the orders of 23rd June 2022 should be set aside in their entirety. Applying the principles that a consent order has contractual effect and can only be set aside on grounds justifying setting aside a contract (Flora Wasike v Destimo Wamboko; Brooke Bond Liebig v Mallya), and that courts possess residual inherent jurisdiction exercisable suo motu to further the overriding objective, the court held that by consenting to the joinder the plaintiff impliedly accepted the Interested Party would file pleadings. The plaintiff had also acquiesced, filing a reply to the defence before challenging the orders. The application was dismissed with costs in the cause.

Key legal issues

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Whether the court should set aside the orders of 23rd June 2022 including suo motu leave granted to the Interested Party to file pleadings

Holding

Application dismissed; the orders of 23rd June 2022 were properly made and the plaintiff failed to demonstrate grounds for review

Reasoning

The plaintiff consented to the joinder of the Interested Party, whose grounds for joinder showed it claimed to be an innocent purchaser for value of the suit land. Once joined by consent, the Interested Party could properly file pleadings. The court's suo motu grant of leave was a valid exercise of inherent power under sections 3A and 1A/1B. The plaintiff did not immediately object, instead filing a reply and participating in pretrial directions, which undermined her challenge. No ground for review under section 80/Order 45 was established.

p. 5

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 may exercise its inherent powers suo motu, even in circumstances governed by rules of court, to further the overriding objective

Court orders

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  1. 1.Application dismissed
  2. 2.Costs in the cause
Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 45 and Order 51 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, "Mulani v Mulani; Safaricom Investment Co-operative Society Limited (Interested Party) (Environment & Land Case 181 of 2012) [2024] KEELC 4001 (KLR)", Case Analysis (2024). MKS. ELC. CASE NO. 181 OF 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4001/eng@2024-05-21

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