Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNaivasha ELC (unnumbered in judgment; arising from suit re parcel No. 1695)· [2024] KEELC 5472 (KLR)

Ndabibi Farmers Company Ltd v Agricultural Development Corporation & 15 others (Environment & Land Case 84 of 2024) (Environment and Land) [2024] KEELC 5472 (KLR)

Environment and Land Court
25 July 2024
2,698 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

A Kenyan land court refused to undo an earlier consent order but froze the situation so KFA members can keep farming until the ownership dispute is fully decided.

What this practically means

#

Executive summary

#
This was a Notice of Motion dated 7th November 2023 brought by the Applicant under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, seeking to set aside consent orders made by Hon. N.S. Lutta in Naivasha Chief Magistrates ELC Case No. E004 of 2022 and an order of status quo allowing its members to resume farming on parcel No. 1695. The Applicant claimed to be the bonafide owner of 2504 acres transferred to it by Colvile Limited in 1974, and complained of intrusion, sub-divisions carried out without its instructions, a questionable title questioned by the Director of Criminal Investigations, and the occupation of parcels L.R 1695/3-1695/18 by the General Service Unit which prevented its members from farming. Only the 12th Respondent filed a replying affidavit, alleging fraud and irregularities in the records and seeking audits and cancellation of titles. The 1st to 11th and 13th to 16th Respondents did not respond and only the Applicant filed submissions. The court framed two issues. On setting aside the consent order, it held that consent orders bind parties unless obtained by fraud, collusion, misapprehension or ignorance of material facts; the consent related to L.R 6233 (1856/1) and L.R 7281, unrelated to parcel 1695, and no vitiating circumstances were shown, so that limb was denied. On status quo, relying on Mugah v Kunga and the ELC Practice Directions, the court issued a defined status quo order permitting the Applicant's members to continue farming on parcels LR 1695/5, 1695/8-12 and 1695/18 without adverse dealing, restrained Respondents from interfering, until final determination. Costs of the application were ordered to be in the cause.

Key legal issues

#
01

Whether the consent order in Naivasha CM ELC Case No. E004 of 2022 could be set aside

Holding

The application to set aside was denied; no nexus between the consent order's subject properties and the current suit was shown, and no fraud, collusion or misapprehension of material facts was established.

Reasoning

The court applied the settled principles in Brooke Bond Liebig v Mallya and Munyiri v Ndungunya that consent orders are binding unless vitiated by fraud, collusion, illegality, mistake or ignorance of material facts. The consent related to L.R 6233 (1856/1) and L.R 7281, properties unrelated to parcel 1695 in the present suit, and no vitiating circumstances were demonstrated.

p. 6
02

Whether the Applicant was entitled to an order of status quo over parcel No. 1695

Holding

A defined status quo order was granted: the Applicant's members to continue farming on parcels LR 1695/5, 1695/8-12 and 1695/18 without dealing with them adversely, and the Respondents not to interfere, until final determination.

Reasoning

Relying on Mugah v Kunga and Practice Direction No. 28(k) vide Gazette Notice No. 5178/2014, the court held that status quo orders preserve the subject matter in land disputes. There being no contestation by the Respondents, the court interfered in a limited manner by clearly defining the status quo to prevent prejudice to any party.

p. 6
03

Whether the Court could exercise inherent jurisdiction under Sections 1A, 1B and 3A of the Civil Procedure Act to set aside the consent order

Holding

Sections 1A, 1B and 3A do not confer jurisdiction to grant the prayers sought, as they deal with the objective of the Act, the duty of the court and inherent powers respectively; inherent power cannot be invoked where rules provide a procedure.

Reasoning

The court noted the application was anchored on Sections 1A, 1B and 3A of the Civil Procedure Act, which do not confer substantive jurisdiction. Citing Bosire J in Muchiri v Attorney General and the Mumias Outgrowers decision, it held that inherent jurisdiction arises only where no clear provisions anchor the relief or where applying the rules would work an injustice.

p. 4

Legal principles established

#
  • A consent order is binding and can only be varied or set aside on grounds such as fraud, collusion, agreement contrary to the policy of the court, or absence/misapprehension of material facts.
  • In land matters, status quo orders should be issued for purposes of preserving the subject matter.
  • The inherent jurisdiction of the court cannot be invoked where the rules have provided the procedure to be followed.

Court orders

#
  1. 1.An order of status quo issued to be maintained by all the parties in that the Applicants' members shall continue to farm on parcels No LR 1695/5, 1695/8-12 and 1695/18 but not to deal with them adversely.
  2. 2.There shall be no interfering with parcels registration No LR 1695/5, 1695/8-12 and 1695/18 by the Respondents.
  3. 3.Such status quo is to be maintained by all parties until the matter is finally heard and determined.
  4. 4.The cost of the application dated the 7th November, 2023 shall be in the cause.

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rule 1; Order 51 Rule 1
  • Gazette Notice No. 5178/2014 Practice Direction No. 28(k)28(k)

Cases cited (12)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Limited Vs. Jan Bonde Nielsen and 2 Others
    (2014) eKLR
  • Mrao vs First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Waithaka v Industrial and Commercial Development Corporation
    [2001] eKLR
  • Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another
    [2016] eKLR
  • Mumias Out growers Company (1998) Ltd –vs- Mumias Sugar Company Ltd
    NRB HCCC No. 414 of 2008
  • Muchiri –vs- Attorney General & 3 others
    (1991) KLR 516
  • Brooke Bond Liebig (T) Limited vs Mallya
    (1975) E.A. 266
  • Hirani vs Kassam
    (1952), 19 EACA 131
  • Munyiri –vs- Ndungunya
    (1985) KLR 370
  • Samuel Mbugua Ikumbu v Barclays Bank of Kenya Limited
    [2015] eKLR
  • Mugah –v- Kunga
    [1988] KLR 748
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Ndabibi Farmers Company Ltd v Agricultural Development Corporation & 15 others (Environment & Land Case 84 of 2024)  (Environment and Land) [2024] KEELC 5472 (KLR)", Case Analysis (2024). Naivasha ELC (unnumbered in judgment; arising from suit re parcel No. 1695). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5472/eng@2024-07-25

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