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ELCPartially AllowedNotice of Motion dated 29th February 2024 (arising from judgment on land parcel No South Teso/Angorom/133)· [2024] KEELC 6051 (KLR)

Peter Waswa Wakhisi, Simon Kayeri Adamba & Hezbon Oyalo v Fredrick Itela Obwana

Environment and Land Court
24 September 2024
2,557 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by Boaz N. Olao J determines a Notice of Motion dated 29th February 2024 by the Applicants, who had obtained judgment on 30th September 2020 from Omollo J declaring that they had acquired land parcel No South Teso/Angorom/133 by adverse possession, extinguishing the Respondent's title. The Respondent filed an appeal, being Court of Appeal Civil Appeal No 24 of 2023 at Kisumu, and on 6th March 2023 the parties recorded a consent staying execution of the decree pending that appeal. The Applicants complained that the Respondent thereafter prepared Mutation Forms to sub-divide the suit land in defiance of the consent, and sought to have the consent order and all consequential orders set aside, together with cancellation of any transactions. The Respondent opposed, relying on Flora N Wasike v Destimo Wamboko and SMN v ZMS, arguing no grounds for setting aside a consent order existed and that cancellation would interfere with orders in Busia High Court Succession Cause No 147 of 2011. Applying the settled principles in KCB v Specialized Engineering, Hirani v Kassam, Purcell v F.C. Trigell and Wasike, the court found nothing in the consent demonstrating fraud, collusion or misapprehension and declined to set it aside. However, it held that preparing Mutation Forms or doing anything to change the suit land would defeat the purpose of the consent, and clarified the position by ordering that no execution shall interfere with ownership, occupation or possession of the suit land pending the appeal. The court also held that the non-prosecution of a substitution application by the deceased 2nd Applicant's widow was not fatal. Each party was ordered to bear its own costs.

Key legal issues

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01

Whether the consent order of 6th March 2023 should be set aside

Holding

The court declined to set aside the consent order as no grounds justifying setting aside a contract were established

Reasoning

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.

p. 3
02

Whether the Respondent's preparation of Mutation Forms breached the consent stay

Holding

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

Reasoning

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.

p. 4
03

Whether failure to prosecute the substitution application dated 4th March 2024 was fatal

Holding

It was not fatal because the deceased was only one of three Applicants and the supporting affidavit was sworn by the living 1st Applicant

Reasoning

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.

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
  • 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

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  1. 1.The prayer seeking the setting aside of the consent orders issued on 6th March 2023 is declined
  2. 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. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 22 Rule 25
  • Civil Procedure RulesOrder 51 Rule 3
  • Land ActSection 50(2)

Cases cited (6)

  • Flora N Wasike -v- Destimo Wamboko
    1982-88 1 KAR 625
  • SMN -V- ZMS & others
    2017 eKLR
  • Kenya Commercial Bank Ltd -v- Specialized Engineering Co LTD
    1982 KLR 485
  • Hirani -v- Kassam
    1952 19 EACA
  • Purcell -V- F.C. Trigell LTD
    1970 3 ALL E.R. 671
  • J. M. Mwakio -v- Kenya Commercial Bank Ltd
    Civil Appeal No 28 of 1982 and 69 of 1983
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

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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, "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.