Makau & another v Attorney General & 3 others (Environment & Land Case 466 of 2017) [2025] KEELC 3394 (KLR)
The bottom line
#A Machakos court refused to undo a 2020 settlement, confirming that consent judgments in Kenya bind parties unless obtained through fraud, collusion, or genuine duress.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent judgment of 11/08/2020 should be set aside on grounds of economic duress and frustration
The motion fails; the consent was entered into freely and voluntarily and the grounds of economic duress and frustration were not proved
The court adopted the test that a consent order binds unless obtained by fraud or collusion or for reasons justifying rescission of a contract. Applying the LTI Kisii economic duress factors, there was no protest at signing; parties were represented by engineers, consultants and counsel; there was a reasonable alternative of setting the matter down for hearing; the application was brought nearly four years late; and clause 4.12 of the consent expressly warranted absence of duress. The frustration ground rested on an incomplete, undated and unsigned document. The 4th defendant therefore failed to discharge its burden.
Procedural mode of attacking a consent judgment - appeal or review
A consent judgment can only be set aside on appeal or review; the 4th defendant's failure to invoke review provisions was a technical infraction excused under Article 159(2)(d)
The court agreed with the 2nd plaintiff that being the court which adopted the consent, a review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 would suffice. However, the omission of those provisions was treated as a minor technicality that does not go to the merits, in line with Article 159(2)(d) of the Constitution, and the court proceeded to determine the motion on its merits.
Legal principles established
#- A consent judgment or order can only be set aside on the same grounds as would justify the setting aside of a contract, such as fraud, mistake or misrepresentation
- An order made in the presence and with the consent of counsel is binding and cannot be varied or discharged unless obtained by fraud or collusion or an agreement contrary to the policy of the court
- Economic duress requires proof that the claimant had no reasonable alternative
Court orders
#- 1.The notice of motion dated 25/06/2024 is dismissed
- 2.Costs awarded to the plaintiffs and the 1st and 2nd defendants
- Jurisdiction invoked
- Sections 1, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makau & another v Attorney General & 3 others (Environment & Land Case 466 of 2017) [2025] KEELC 3394 (KLR)", Case Analysis (2025). Not stated in the judgment (suit relates to Machakos HCCC E023 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3394/eng@2025-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.