Gacheru & another v Karuga & 8 others (Environment & Land Case 72 of 2019) [2024] KEELC 5858 (KLR)
The bottom line
#A Kenyan court refused to undo a land sale settlement, confirming that consent orders stand unless fraud or collusion is proven.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 5/11/2019 should be set aside
The application fails; none of the grounds (non-existence of the parcel, inclusion in the estate, lack of capacity, absence of Land Control Board consent) satisfied the threshold for setting aside a consent order
The court found LR 20920/4 exists as a surveyed subdivision per Deed Plan No. 196072 and a deed of indenture vesting it in the 1st defendant. The Partial Certificate of Confirmation of Grant exhibited by the defendants themselves affirmed the land was gifted intervivos and was not a free asset of the estate. The vendor therefore had capacity, and the plea of missing Land Control Board consent was an attempt to profit from the vendor's own breach. Fraud or collusion was not established.
Whether interlocutory injunctive orders should issue to the defendants
No; the dismissal of the setting-aside application removed any basis for an injunction, and the defendants had no counterclaim
The court reasoned logically from its finding on the consent order: since the dispute remained settled by the consent, there was no proper basis for interlocutory injunctive relief. Additionally, absent a counterclaim, there was nothing on which to anchor interlocutory orders even if the setting-aside plea had succeeded.
Whether the contempt application dated 5/10/2022 should proceed
It should proceed only after amendment to join the administrators of the estate of Charles Karuga Koinange as a necessary party
Because the deceased died before completing conveyance of the intervivos gift, the administrators have a facilitative role in completing the conveyance, making them necessary parties to the contempt application. The court directed amendment of the motion and deferred fresh directions.
Legal principles established
#- A court will not interfere with a consent judgment or consent order except on grounds such as would justify varying or rescinding a contract, namely fraud, collusion or an agreement contrary to the policy of the court
- A party cannot rely on its own breach of covenant (failure to obtain Land Control Board consent) as a ground for relief
- Interlocutory orders cannot ordinarily issue in favour of a party without a counterclaim on which to anchor them
Court orders
#- 1.The defendants' application dated 27/9/2023 is dismissed for lack of merit with costs to the plaintiffs
- 2.The notice of motion dated 5/10/2022 be amended to join the administrators of the estate of Charles Karuga Koinange jointly as respondent number 3 in the motion for contempt orders
- 3.All parties to the contempt motion are cautioned about the grave consequences of contempt of a court order
- 4.Fresh directions to be issued on disposal of the application dated 5/10/2022 once the motion is amended
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to Land Reference Number 20920/4; contempt jurisdiction under the consent order adopted by the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gacheru & another v Karuga & 8 others (Environment & Land Case 72 of 2019) [2024] KEELC 5858 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5858/eng@2024-08-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.