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ELCPartially AllowedEnvironment and Land Case (as stated in the ruling; Notice of Motion dated 6th October 2023)· [2024] KEELC 4501 (KLR)

Kalliste Limited v Bendera & 77 others (Civil Case 509 of 2011) [2024] KEELC 4501 (KLR)

Environment and Land Court
3 May 2024
14,022 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~56 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court partially allowed a review in a 322-defendant land case, fixing defendant numbering while refusing to revive a consent or strike out pleadings.

What this practically means

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Executive summary

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Kalliste Limited, the Plaintiff in a long-running land suit with 322 Defendants over Plot No. 1984/V/Mainland North, moved the court by Notice of Motion dated 6th October 2023 seeking review of the court's ruling/directions of 15th March 2022, realignment of all Defendants' names, adoption of a consent dated 27th November 2012 as an order of the court, striking out of the Memorandum of Appearance and Defence filed by Messrs. Jengo & Associates, and setting aside of the order of 4th July 2023 which directed the Plaintiff to move the court within 90 days or have its suit automatically dismissed. Twenty-eight named Defendants opposed through written submissions, arguing there was no error apparent on the face of the record, the order of 15th March 2022 had already been reviewed on 19th June 2023, the decree had been enforced so the court was functus officio, striking out pleadings was draconian, and the 90-day period had lapsed without extension. The court framed five issues and partially allowed the application. It found an error apparent on the face of the record in the ruling of 15th March 2022 - the assumption that the consent names could be aligned to the Defence when some persons were added to the suit after the Plaint and Defence were filed - and set aside Order (b) of that ruling, directing instead that the 322 Defendants be renumbered in the sequence they were added and that pleadings be amended within 14 days. It refused to set aside the 4th July 2023 order, refused adoption of the consent (which covered only 40 Defendants), and refused to strike out the Jengo & Associates pleadings, holding the Defendants' right to multiple advocates is constitutionally protected. Each party was left to bear its own costs. The ruling was delivered at Mombasa on 3rd May 2024 by Hon. Mr. Justice L. L. Naikuni.

Key legal issues

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01

Whether the ruling of 15th March 2022 should be reviewed on account of error apparent on the face of the record

Holding

Review allowed only in part - the error concerning the alignment of Defendants' names was apparent on the record; the prayer for review succeeded partially on the orders concerning the aligning of the names of the Defendants

Reasoning

The court reiterated that Section 80 of the Civil Procedure Act confers the power of review while Order 45 sets out the restrictive rules. It found the court's earlier assumption that the consent names could be aligned to the Defence was erroneous because some persons in the consent were added to the suit after both the Plaint and Defence were filed. However, the order directing rectification of a decree declared a nullity was set aside as an apparent error.

p. 17
02

Whether the order of 4th July 2023 (90 days to move the court or the suit stands dismissed) should be set aside

Holding

The prayer was refused because the orders caused no prejudice to the Plaintiff

Reasoning

The court noted the wide discretionary power to set aside orders under Order 10 Rule 11, Order 12 Rule 7 and Order 40 Rule 7, citing Patel v E.A. Cargo Handling Services Ltd. However, given the consent on record, the court saw no prejudice to the Plaintiff and declined to set the order aside.

p. 20
03

Whether the consent dated 27th November 2012 should be adopted as an order of the court

Holding

Refused because the consent only covered 40 of the Defendants while the suit involved many more Defendants

Reasoning

The court reviewed the doctrine that consent orders have contractual effect and can only be set aside on grounds justifying setting aside a contract (Wasike v Wamboko; KCB v Specialised Engineering; Hirani v Kassam; Brooke Bond Liebig v Mallya). It noted adoption of consents accords with Article 159(2)(c) and Sections 20(1) and (2) of the Environment and Land Court Act, but declined to extend the consent to all Defendants.

p. 25
04

Whether the Memorandum of Appearance and Defence by Messrs. Jengo & Associates should be struck out

Holding

Refused; a party may be represented by more than one advocate and the right to representation of choice is constitutional

Reasoning

The court held that Article 50(2)(g) and (h) of the Constitution, the Advocates Act and Order 9 guarantee the right to legal representation, and Section 59 of the Advocates Act contemplates costs of more than one advocate. The Plaintiff failed to invoke Article 24(1) to justify any limitation of that right, so the contention failed.

p. 27

Legal principles established

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  • Review is available only for error apparent on the face of the record, discovery of new and important matter, or other sufficient reason, and must be sought without unreasonable delay; a review is not an appeal
  • An error apparent on the face of the record must be self-evident, not requiring elaborate argument; a possible view adopted by the court cannot be an error apparent on the record
  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • There is no bar to a party being represented by more than one advocate; the right to legal representation of choice is constitutional and should not be unnecessarily hindered

Court orders

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  1. 1.The Notice of Motion application found to partially have merit and allowed with regard to prayers (b), (c) and (d)
  2. 2.The Ruling/Direction of the Court delivered/issued on 15th March 2022 reviewed and varied to the extent that Order (b) thereof (requiring the Plaintiff to move the court to rectify the Decree and align the names of the 1st to 40th Defendants to the two Defences) is set aside
  3. 3.The names of the 322 Defendants to be aligned in the sequence in which they were added to the suit: the original 78 in the Plaint dated 16th September 2011, then the 29 added by order of 10th July 2012 (Mwongo, J.), the 10 added by order of 19th November 2012 (Mwera, J.), and finally the 205 added by the order of 28th May 2014 (Mukunya, J.)
  4. 4.Parties directed to amend their pleadings within 14 days to reflect the new sequence and numbering of the Defendants' names
  5. 5.The matter to be fixed for hearing on 16th October (year as stated: 2014)
  6. 6.No orders as to costs
Jurisdiction invoked
Sections 1A, 3A and 80 of the Civil Procedure Act, Cap. 21; Orders 1, 2, 8, 45 of the Civil Procedure Rules, 2010; Article 159 of the Constitution of Kenya, 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, "Kalliste Limited v Bendera & 77 others (Civil Case 509 of 2011) [2024] KEELC 4501 (KLR)", Case Analysis (2024). Environment and Land Case (as stated in the ruling; Notice of Motion dated 6th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4501/eng@2024-05-13

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