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ELCDismissedNot stated in judgment (pending appeal, Environment and Land Court)· [2024] KEELC 5377 (KLR)

Kisanda Kilanda Enterprises v Ksiua & 2 others (Environment and Land Appeal 6 of 2023) [2024] KEELC 5377 (KLR)

Environment and Land Court
23 July 2024
MCMbogo C.G.
2,094 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to undo a 2011 land consent order, confirming such orders bind parties unless fraud or collusion is proven.

What this practically means

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Executive summary

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The respondents/applicants in a long-running land appeal before the Environment and Land Court moved the court by Notice of Motion dated 12th March 2024 seeking to set aside, vacate and expunge the consent order recorded on 16th November 2011 (varied on 7th February 2012) together with the consequential Land Registrar's Report dated 17th July 2012. They argued that the report was inadmissible additional evidence on a second appeal, that the boundary dispute was res judicata having been dismissed in Nakuru HCC 280 of 1982 and Nakuru Civil Appeal 140 of 1996, and that singling out their parcel to carve off about 50 acres was discriminatory contrary to Article 27(4) of the Constitution. The appellant/respondent, through the replying affidavit of Patrick Kerongo, opposed the application as an afterthought, an abuse of process, and an attempt to re-argue the appeal contrary to the Court of Appeal's limitation of issues, relying on Kenya Commercial Bank v Specialised Engineering Co. Ltd on the binding nature of consent orders. The court, per Mbogo C.G., J., framed a single issue: whether the consent order and the Registrar's report ought to be set aside. Applying KCB v Specialised Engineering and Hirani v Kassam, the court held that a consent order has contractual effect and can only be set aside on grounds such as fraud or collusion; none was shown. The applicants' averments were in substance arguments on the appeal itself, which were best reserved for the appeal, and the Registrar's report merely formed part of the evidence guiding the court on boundary overlap. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the consent order of 16th November 2011 and the Land Registrar's Report of 17th July 2012 should be set aside and expunged

Holding

The application fails; no ground for setting aside the consent was demonstrated, and the report forms part of the record evidence

Reasoning

The court applied the settled principle that a consent order has contractual effect and can only be set aside on grounds justifying setting aside a contract - fraud, collusion, misapprehension or material non-disclosure. The applicants advanced no such grounds; their averments were in substance arguments against the appeal itself, which the Court of Appeal had limited. The Registrar's report was evidence that merely guided the court on the extent of boundary overlap and could not be expunged by way of a review application.

p. 4

Legal principles established

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  • A consent order entered into by counsel is binding and can only be set aside on grounds which would justify setting aside a contract, such as fraud, collusion, misapprehension or non-disclosure of material facts
  • A party may not use an interlocutory application to argue the substantive appeal; arguments on appeal should be reserved for the appeal

Court orders

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  1. 1.The notice of motion dated 12th March, 2024 is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 25(c), 50(1), 50(4), 27(4)
  • Environment & Land Court ActSections 13, 19
  • Civil Procedure ActSections 1, 1A, 3, 3A, 80
  • Civil Procedure RulesOrder 2 Rule 15(1)(b) & (d); Order 45 Rules 1(a) & (b), 2, 4(1), 10(1)(b)

Cases cited (5)

  • Kenya Commercial Bank versus Specialised Engineering Co. Limited
    [1982] KLR 485
  • Hirani versus Kassam
    [1952] 19 EACA 131
  • J. M. Mwakio v Kenya Commercial Bank Limited
    Civ Apps 28 of 1982 and 69 of 1983
  • Purcell v F.C. Trigell Ltd
    [1970] 3 All ER 671
  • Nakuru Civil Appeal 140 of 1996
Jurisdiction invoked
Article 25(c), 50(1) & 50(4) of the Constitution; Sections 13 & 19 of the Environment & Land Court Act; Sections 1, 1A, 3, 3A & 80 of the Civil Procedure Act; Order 2 Rule 15(1)(b),(d) and Order 45 Rules 1(a),(b), 2, 4(1) & 10(1)(b) of the Civil Procedure Rules

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, "Kisanda Kilanda Enterprises v Ksiua & 2 others (Environment and Land Appeal 6 of 2023) [2024] KEELC 5377 (KLR)", Case Analysis (2024). Not stated in judgment (pending appeal, Environment and Land Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5377/eng@2024-07-23

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