Kalliste Limited v Bendera & 77 others (Civil Case 509 of 2011) [2024] KEELC 4501 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the ruling of 15th March 2022 should be reviewed on account of error apparent on the face of the record
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
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.
Whether the order of 4th July 2023 (90 days to move the court or the suit stands dismissed) should be set aside
The prayer was refused because the orders caused no prejudice to the Plaintiff
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.
Whether the consent dated 27th November 2012 should be adopted as an order of the court
Refused because the consent only covered 40 of the Defendants while the suit involved many more Defendants
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.
Whether the Memorandum of Appearance and Defence by Messrs. Jengo & Associates should be struck out
Refused; a party may be represented by more than one advocate and the right to representation of choice is constitutional
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.
Legal principles established
#- 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
#- 1.The Notice of Motion application found to partially have merit and allowed with regard to prayers (b), (c) and (d)
- 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.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.Parties directed to amend their pleadings within 14 days to reflect the new sequence and numbering of the Defendants' names
- 5.The matter to be fixed for hearing on 16th October (year as stated: 2014)
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.