Ogando v Kenya Ports Authority Pension Scheme (Defined Benefits) & another (Environment & Land Case 73 of 2021) [2024] KEELC 7041 (KLR)
The bottom line
#A Mombasa court threw out a consent order reached without a party present, refused to punish trustees for contempt, and froze all Pension Scheme property transfers until trial.
What this practically means
#Executive summary
#Key legal issues
#Setting aside the consent dated 20th May 2024
The application to set aside was allowed - not on the strict contractual grounds, but because the consent was presented for adoption in the Plaintiff's absence, offending fair hearing and natural justice under Articles 25(c) and 50(1) & (2); adoption of the consent was deferred
The court recited the settled law that consent orders have contractual effect and can only be set aside on grounds justifying setting aside a contract (fraud, collusion, mistake, misapprehension, etc.), citing Harris J in KCB v Specialised Engineering and Hirani v Kassam. However, the court found from the record that the consent was adopted in the Plaintiff's absence. Invoking fair hearing and natural justice, the court held that all parties must be physically present in court when a consent is presented for confirmation and adoption, and accordingly granted the prayer to defer adoption of the consent.
Contempt of the 7th May 2024 injunctive order by opening Tender No. KPAPS/DISP/002/2024
The contempt application failed; contempt was not proved against the trustees
The court set out the statutory framework (ELC Act s.29; Order 40 rule 3 CPR; s.5(1) Judicature Act as restated after the nullification of the Contempt of Court Act) and the elements from Katsuri Limited v Kapurchand Depar Shah and Burchell v Burchell. Although the order was clear and known to the parties, the court found the 1st Defendant's reliance on the signed consent, which the parties themselves had agreed to, meant there was no deliberate and intentional violation. Contempt being quasi-criminal, proof beyond reasonable doubt is required and the applicant did not discharge that burden.
Ex parte inhibition over Pension Scheme properties
Granted - the court directed registration of an inhibition under Section 68 of the Land Registration Act and Regulation 79 of the Land Registration (General) Regulations, 2017
Relying on Section 68 of the Land Registration Act, 2012 and authorities on preservation of the subject matter and maintenance of status quo in land matters (Mugah v Kunga; Joel Kipkurui Arap Koech v Alice Wambui Magandu), the court held it would be in the interest of justice to order an inhibition restricting registration or disposition of the suit properties until the suit is heard and determined, so as to preserve the substratum of the case.
Costs of both applications
No costs awarded; the court reserved its discretion
Applying Section 27 of the Civil Procedure Act and Morgan Air Cargo Limited v Evrest Enterprises Limited, the court held that costs follow the event but remain at the court's discretion, dependent on the circumstances of each case. In this case the court exercised its discretion not to award any costs.
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
- Parties who wish a court to adopt a consent judgment or order must all be physically present in court for confirmation and adoption
- Punitive action for contempt must be taken only in the clearest of cases, proof being beyond reasonable doubt, because contempt is quasi-criminal and may entail loss of liberty
- Elements of civil contempt: clear unambiguous order binding on the defendant, knowledge of the order, breach of its terms, and deliberate conduct
Court orders
#- 1.The Notice of Motion application dated 12th June, 2024 is found to have merit and is allowed
- 2.The Notice of Motion application dated 18th June, 2024 is found to have partial merit and is allowed only in regards to prayer 4
- 3.The duly executed Consent order is set aside for being presented to court in the absence of the Plaintiff/Applicant
- 4.The Land Registrar, Mombasa is directed to forthwith register an Inhibition against any transfer and/or any dealing pertaining to all Pension Scheme properties to any third party until this suit is heard and finally determined
- 5.The matter to be heard on 3rd March, 2025, with a mention on 13th November, 2024 for Pre-Trial Conference pursuant to Order 11 of the Civil Procedure Rules, 2010
- 6.There shall be no orders as to costs
- Jurisdiction invoked
- Articles 25(c) and 50(1) & (2) of the Constitution of Kenya, 2010; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Cap. 21; Section 5 of the Judicature Act (Cap. 8); Section 68 of the Land Registration Act, No. 3 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogando v Kenya Ports Authority Pension Scheme (Defined Benefits) & another (Environment & Land Case 73 of 2021) [2024] KEELC 7041 (KLR)", Case Analysis (2024). Not disclosed in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7041/eng@2024-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.