Peter Waswa Wakhisi, Simon Kayeri Adamba & Hezbon Oyalo v Fredrick Itela Obwana
The bottom line
#The High Court refused to undo a consent order but made clear no one can touch the disputed land until the appeal ends.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 6th March 2023 should be set aside
The court declined to set aside the consent order as no grounds justifying setting aside a contract were established
Relying on precedents including Kenya Commercial Bank v Specialized Engineering, Hirani v Kassam, Purcell v F.C. Trigell and Flora N. Wasike v Destimo Wamboko, the court held a consent order has contractual effect. Nothing in the consent demonstrated fraud, collusion, misapprehension or other grounds warranting its setting aside. The proper remedy was clarification and reiteration of the stay, not setting aside.
Whether the Respondent's preparation of Mutation Forms breached the consent stay
The Mutation Form dated 27th June 2023, filed some three months after the consent, threatened to defeat the purpose of the stay; the court reiterated that no execution shall interfere with ownership, occupation or possession pending appeal
The court found that if the sub-division proceeded to completion and individual titles issued before the appeal was determined, the whole purpose of the consent order would be defeated. Although the Certificate of Official Search showed no completed sub-division, the court found clarification of the consent order necessary and expressly prohibited any interference with the suit land pending appeal.
Whether failure to prosecute the substitution application dated 4th March 2024 was fatal
It was not fatal because the deceased was only one of three Applicants and the supporting affidavit was sworn by the living 1st Applicant
The court noted the substitution application by the widow of the deceased 2nd Applicant had not been canvassed, but held the application of 29th February 2024 could proceed since the supporting affidavit was filed by the 1st Applicant who is alive and the deceased was only one of the three Applicants.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
- A consent order cannot be set aside or varied unless obtained by fraud, collusion, agreement contrary to the policy of the court, or without sufficient material facts or in misapprehension of them
- A stay of execution means nothing may be done on the suit property that would change its state, including sub-division, transfer, lease or charge, pending the appeal
Court orders
#- 1.The prayer seeking the setting aside of the consent orders issued on 6th March 2023 is declined
- 2.No execution of the judgment/decree shall proceed in any manner as to interfere with the ownership, occupation or possession of the land parcel No South Teso/Angorom/133 pending the hearing and determination of the Court of Appeal Civil Appeal No 24 of 2023 at Kisumu
- 3.Each party shall bear their own costs
- On appeal from
- Court of Appeal, Kisumu
- Civil Appeal No 24 of 2023
- Jurisdiction invoked
- Civil Procedure Rules, Order 10 Rule 11, Order 22 Rule 25 and Order 51 Rule 3
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Waswa Wakhisi, Simon Kayeri Adamba & Hezbon Oyalo v Fredrick Itela Obwana", Case Analysis (2024). Notice of Motion dated 29th February 2024 (arising from judgment on land parcel No South Teso/Angorom/133). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6051/eng@2024-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.