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ELCAllowed· [2024] KEELC 5382 (KLR)

Chirchir & 2 others (Suing for and on Behalf of Themselves & Keres Self Help Group) v Moi & 2 others (Environment & Land Case 27 of 2022) [2024] KEELC 5382 (KLR)

Environment and Land Court
23 July 2024
MOM. A. Odeny
1,937 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court set aside a consent settling a land suit because it was recorded by someone no longer a party to the case.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determined a Notice of Motion dated 1st November 2023 in which the Applicants sought review, vacation and setting aside of a consent of parties dated 25th May 2023, which had marked the suit as settled, and reinstatement of the suit for hearing. The Applicants, through the supporting affidavit of the 3rd applicant Michael C. Korir, alleged that Simon Kipsang Yator, who had been removed as a plaintiff by an amended plaint dated 24th April 2023, colluded with the 1st respondent to fraudulently file a notice of change of advocates appointing M/s Kipkoech Terer & Co. Advocates and a consent marking the matter settled. The 1st respondent opposed, contending the suit stood compromised by the consent, that the applicants' advocates were not properly on record under Order 9 Rule 9, and that title deeds had issued. The court framed two issues: whether M/s Kipkoech Terer & Co. Advocates were properly on record, and whether the consent was legally procured or liable to be set aside. Relying on Board of Trustees NSSF v Mwalo, Flora N. Wasike v Destimo Wamboko and Hirani v Kassam, the court held that a consent order has contractual effect and may be set aside on grounds justifying rescission of a contract, including fraud, collusion or misrepresentation. Finding that Simon K. Yator had ceased to be a plaintiff and lacked capacity to instruct advocates, the court held the notice of change and consent were procured through misrepresentation. The court expunged the notice of change of advocates from the record, set aside the consent with costs to the Applicant, and reopened the matter for hearing on merit.

Key legal issues

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01

Whether the Notice of Change of Advocates was properly on record

Holding

It was irregular; Simon K. Yator had ceased to be a plaintiff upon amendment of the plaint and had no authority to instruct the new firm.

Reasoning

The amended plaint dated 24th April 2023 removed Simon K. Yator as a plaintiff and substituted the 1st applicant. Having ceased to be a party, he could not represent the other plaintiffs or instruct M/s Kipkoech Terer & Co. Advocates. The notice of change filed on 24th May 2023 was therefore irregular and Order 9 of the Civil Procedure Rules was inapplicable.

p. 4
02

Whether the consent of 25th May, 2023 should be set aside

Holding

Yes; it was procured through misrepresentation because it was recorded by a person who was not a party to the suit.

Reasoning

A consent order is binding unless obtained by fraud, collusion or misrepresentation, or on grounds justifying setting aside a contract. Since Simon K. Yator was not a party when the consent was recorded, the consent and notice of change were procured through misrepresentation and could not stand.

p. 4

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, including fraud, collusion or misrepresentation.
  • A party who has ceased to be a party to a suit lacks capacity to take any step in the suit, including instructing advocates.

Court orders

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  1. 1.The Notice of Change of Advocates filed on 24th May, 2023 is expunged from the court record
  2. 2.The consent dated 25th May, 2023 marking the suit as settled is set aside
  3. 3.Costs to the Applicant
  4. 4.The matter is reopened for hearing and determination on merit

Authorities

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Legislation

  • Civil Procedure RulesOrder 9
  • Civil Procedure RulesOrder 9 Rule 5
  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (9)

  • Sandra Grimmet & Another V Benedict Ndigirigi Gichuhi
    [2010] eKLR
  • Inter Countries Importers & Exporters Ltd V Teleposta Pension Scheme Registered Trustees & 5 Others
    [2019] eKLR
  • Flora N. Wasike V Destimo Wamboko
    [1988]
  • Brooke Bond Liebig Ltd V Mallya
    [1975] EA 266
  • Stephen Mwangi Kimote V Murata Sacco Society
    [2018] eKLR
  • Board of Trustees National Social Security Fund versus Micheal Mwalo
    [2015] eKLR
  • Hirani V. Kassam
    [1952] 19 EACA 131
  • Purcell v F.C. Trigell Ltd
    [1970] 3 All ER 671
  • J. M. Mwakio v Kenya Commercial Bank Limited
    Civ Apps 28 of 1982 and 69 of 1983
Jurisdiction invoked
Inherent powers of the court to review, vacate and set aside a consent order, and the Civil Procedure Rules (Order 9)

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, "Chirchir & 2 others (Suing for and on Behalf of Themselves & Keres Self Help Group) v Moi & 2 others (Environment & Land Case 27 of 2022) [2024] KEELC 5382 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5382/eng@2024-07-23

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