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ELCPartially AllowedNot stated in the excerpt· [2025] KEELC 3452 (KLR)

Waweru v Seke & 3 others; Mundia & others (Interested Party) (Environment & Land Case 91 of 2011) [2025] KEELC 3452 (KLR)

Environment and Land Court
29 April 2025
AKA. Y. Koross
1,612 words in judgment
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Machakos set aside a consent judgment entered without two defendants' participation, confirming every party has a right to be heard.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (A. Y. Koross, J) determined the 3rd defendant's notice of motion dated 27/10/2023 seeking to set aside a consent judgment and decree recorded on 27/04/2022, together with the plaintiff's preliminary objection dated 7/12/2023. The 3rd defendant, through its chairman Vincent Onyango Ogilo, deposed that the consent was entered between the 1st and 2nd defendants and interested parties without the knowledge, concurrence or presence of the 3rd and 4th defendants, and that it affected land parcel LR Mavoko Town Block 3/1973, which was never the subject of determination. The court first disposed of the preliminary objection, holding that its grounds raised contested facts requiring evidence and so failed the Mukisa Biscuit threshold; it was dismissed. On the motion, the court applied Order 25 Rule 5 of the Civil Procedure Rules and authorities including Kanyiita Nderitu, Flora Wasike and Waiguru v Karua, holding that a consent may be set aside where a party or counsel did not participate, in which case it is a nullity ab initio. The court record of 27/4/2022 confirmed the 3rd and 4th defendants and their counsel were absent. The court found the consent unprocedural, irregular, unlawful and a nullity, set aside the consent judgment, decree and consequential orders, and directed that further directions be given since the matter is part heard, with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the preliminary objection met the Mukisa Biscuit threshold

Holding

The PO failed as it raised contested factual matters requiring evidence

Reasoning

The PO asserted that the 3rd defendant's counsel was present at the hearing, a factual dispute between the parties. Resolving it would require an assessment of pleadings and evidence. Since a PO must be a pure point of law on assumed facts, the objection did not meet the legal threshold and was dismissed.

p. 3
02

Whether the consent judgment of 27/4/2022 should be set aside

Holding

Yes; it was entered without the knowledge, participation or presence of the 3rd and 4th defendants and was a nullity

Reasoning

Relying on Kanyiita Nderitu, Wasike and Waiguru, the court held consents may be set aside for mistake or lack of participation. The court record showed only the plaintiff's counsel, 1st and 2nd defendants' counsel and IPs' counsel present on 27/4/2022. The consent was therefore unprocedural, irregular and unlawful, and violated the 3rd and 4th defendants' right to a fair hearing.

p. 4

Legal principles established

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  • A preliminary objection must be on a pure point of law, assuming the facts pleaded by the other side
  • A consent judgment can only be set aside on grounds that would justify setting aside a contract, such as fraud, mistake or misrepresentation
  • A consent entered without a party's or its counsel's participation is a nullity ab initio
  • Parties to proceedings have a right to be heard before adverse orders are made against them

Court orders

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  1. 1.The notice of preliminary objection dated 7/12/2023 is hereby dismissed
  2. 2.That consent judgment entered on 27/4/2022 and all consequential orders that ensued therefrom, including the decree, are hereby set aside
  3. 3.Since the matter is part heard, further directions shall be made on the hearing of this matter
  4. 4.Costs shall abide by the outcome of the main suit
Jurisdiction invoked
Order 25 Rule 5 of the Civil Procedure Rules (power to adopt consents and record consent judgments)

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, "Waweru v Seke & 3 others; Mundia & others (Interested Party) (Environment & Land Case 91 of 2011) [2025] KEELC 3452 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3452/eng@2025-04-29

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