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ELCPartially AllowedMurang'a CMEL No 94 of 2022 (Appeal)· [2024] KEELC 6417 (KLR)

EMM v JMC & another (Environment and Land Appeal E002 of 2023) [2024] KEELC 6417 (KLR)

Environment and Land Court
3 October 2024
LGL. GACHERU
3,215 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court set aside a father-and-son's consent judgment over family land because they hid key facts from the court.

What this practically means

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Executive summary

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This first appeal, admitted under Section 79B of the Civil Procedure Act, challenged a Ruling of the Chief Magistrates Court at Murang'a (Hon. Eric Musambai SRM) delivered on 29th June 2023, which disallowed the Appellant's application for review of a consent judgment recorded on 15th February 2023 between the 1st and 2nd Respondents, father and son. The underlying suit sought transfer of land parcel No Muranga Municipality Block x/x from the son to the father on grounds of fraud; the son conceded fraud and a consent judgment was recorded within a month of filing - shortly after the son's divorce from the Appellant, who lived on the suit property with their children and had a pending matrimonial property cause in the High Court. The Appellant, joined as an interested party, sought joinder (allowed) and setting aside of the consent judgment (disallowed). On appeal, L. GACHERU J applied the settled principles in Flora Wasike, Brooke Bond Liebig v Mallya, Hirani v Kassam and KCB v Specialized Engineering that consent judgments may only be set aside on grounds justifying vitiation of a contract, such as fraud, collusion or material non-disclosure. Finding the timing of the suit and consent suspicious, the material non-disclosure of the Appellant's relationship and occupation, and possible collusion, the court allowed the appeal, set aside the consent judgment, remitted the file for inter-parties hearing before another magistrate, and granted the Appellant costs of the appeal and of the trial court.

Key legal issues

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01

Whether the consent judgment should be set aside for non-disclosure of material facts and/or collusion

Holding

Yes - non-disclosure of the Appellant's relationship to the parties and her occupation of the suit property, and apparent collusion between father and son, justified setting aside the consent judgment

Reasoning

The court noted the suspicious timing: the father sued his son over land registered in 2001 only after the son's divorce from the Appellant was finalized, and a consent judgment was recorded within a month. The Appellant was joined but not heard. Non-disclosure of her relationship and occupation was material, and collusion could not be discounted.

p. 6
02

Right to be heard as a joined party

Holding

A joined party must be afforded an opportunity to advance her claim as a rule of natural justice

Reasoning

Having been joined to the proceedings, the Appellant should have been allowed to advance her claim. The court invoked the audi alteram partem rule as a constitutional requirement and rule of natural justice, relying on the Makondo Primary School decision quoted in Egal Mohamed Osman.

p. 5

Legal principles established

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  • A consent judgment can only be varied or set aside on the grounds that would allow a contract to be vitiated, including fraud, collusion, illegality, mistake and public policy

Court orders

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  1. 1.Appeal allowed entirely
  2. 2.Consent Judgment dated 15th February 2023 set aside/vacated on grounds of non-disclosure of material facts and/or collusion
  3. 3.Original file remitted to the Chief Magistrates Court at Murang'a for full hearing and determination on merit
  4. 4.Suit Muranga CMELC No E094 of 2022 to proceed inter-parties before another trial court and not before Hon. Eric Musambai
  5. 5.Costs of the Appeal and at the trial court granted to the Appellant
  6. 6.Notice on the entry of Judgement to issue

Authorities

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Legislation

  • Civil Procedure ActSection 79B
  • Civil Procedure ActSection 27
  • Civil Procedure ActOrder 45 rule 1
  • Limitation of Actions Act Cap 22 Laws of KenyaSection 7

Cases cited (9)

  • Samson Munika practicing as Munika & Co Advocates v Wadube Estates Limited
    NRB Civil Appeal No 126 of 2005
  • Broke Bond Leibig (T) Ltd v Mallya
    (1975) EA 266
  • Hiram v Kassan
    (1952) 19 EACA 131
  • Flora Wasike v Destimo Wamboko
    (1982-1988) 1 KAR 625
  • Brooke Bond Liebig v Maliya
    (1975) EA 266
  • Hirani v Kassam
    (1952) 19 EACA 131
  • Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd
    (1982) KLR P. 485
  • Egal Mohamed Osman v Inspector General of Police & 3 others
    [2015] eKLR
  • Management of Committee of Makondo Primary School and another v Uganda National Examination Board
    HC Civil Misc Application No 18 of 2010
On appeal from
Chief Magistrates Court, Murang'a
Murang'a CMEL No 94 of 2022
Jurisdiction invoked
First appeal under Section 79B of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "EMM v JMC & another (Environment and Land Appeal E002 of 2023) [2024] KEELC 6417 (KLR)", Case Analysis (2024). Murang'a CMEL No 94 of 2022 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6417/eng@2024-10-03

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