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ELCDismissedNot stated in the extract (Malindi ELC, arising from plaint filed July 2014)· [2025] KEELC 5383 (KLR)

Denman Properties Limited v County Land Registrar Kilifi & 9 others (Environment and Land Case 150 of 2014) [2025] KEELC 5383 (KLR)

Environment and Land Court
10 July 2025
EME. K. Makori
1,862 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Malindi court refused to undo a 2015 consent judgment, saying the defendants waited ten years and failed to prove they never instructed their lawyer.

What this practically means

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Executive summary

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The 7th and 8th defendants/applicants moved the court by Notice of Motion dated April 26, 2024, seeking primarily to set aside the consent judgment entered on June 18, 2015, and to have Dr. Gitau come on record for them. The application was supported by affidavits of Abdiriza Maalimu and opposed by a replying affidavit of Sophia Abdillahi Chacha. The applicants contended they were never served with summons and never instructed Mr. Michira Messah to act for them or enter the consent, relying on his defense in Malindi ELC No. E015 of 2024 that he never acted for them. The respondents maintained that summons were served in August 2014, that the consent was entered by the firm of Michira Messah, that the judgment in ELC Petition No. 11 of 2012 has long been enforced, and that the applicants have been aware of the consent, as demonstrated in African Banking Corporation Limited v Zeitus Holdings Limited (Majanja J.). The court framed three issues: whether Dr. Gitau should come on record, whether to set aside the consent judgment, and costs. It recorded Dr. Gitau for the applicants. Applying the settled principle that consent judgments have contractual effect and may only be set aside on grounds such as fraud, misrepresentation, mistake or public policy, the court held that the burden lay on the applicants to prove lack of instructions; Mr. Michira's denial remained an unverified defense unsupported by any investigation. With over ten years elapsed and third parties having purchased portions of the property, the court was not persuaded to set aside the consent and dismissed the application with costs to the plaintiffs/respondents.

Key legal issues

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01

Whether the consent judgment of 18 June 2015 should be set aside

Holding

The application was dismissed; the consent judgment stands

Reasoning

The court restated that consent judgments have contractual effect and can only be set aside on grounds justifying setting aside a contract. The applicants bore the burden of proving lack of instructions to the advocate who entered the consent. Mr. Michira's denial of instructions was a mere unverified defense, unsupported by any criminal or professional investigation. The applicants had known of the consent since 2015, never challenged it or the ELC Petition No. 11 of 2012 judgment, which has long been enforced, and third parties have purchased portions of the suit property.

p. 4

Legal principles established

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  • A consent judgment may only be annulled on grounds analogous to those for rescinding a contract, such as fraud, misrepresentation, mistake or public policy
  • A party who claims he never gave instructions to counsel to settle on his behalf bears the burden of proving it

Court orders

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  1. 1.Dr. Gitau recorded as appearing and representing the 7th and 8th defendants/applicants from the date of the ruling
  2. 2.The application dated 26th April 2024 to set aside the consent judgment entered on 18th June 2015 is dismissed
  3. 3.Costs of the application awarded to the plaintiffs/respondents

Authorities

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Legislation

  • Registered Lands Act (repealed)sections 10(2)(B) and 32(1)(i)

Cases cited (8)

  • Flora N. Wasike v Destimo Wamboko
    [1987] eKLR
  • E.T. v Attorney General and another
    [2012] eKLR
  • Purcell vs FC Trigal Ltd
    (1970) 3 All ER 671
  • Hirani v Kassam
    [1952] 19 EACA 131
  • Brooke Bond Liebig Ltd v Mallya
    [1975] EA 266
  • Diamond Trust Bank of Kenya Limited v Ply and Panel Limited & Another
    [2004] EA 31
  • Kenya Commercial Bank Ltd v Specialised Engineering Co Ltd
    [1982] KLR 485
  • African Banking Corporation Limited v Zeitus Holdings Limited and 5 others
    [2021] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over an interlocutory application to set aside a consent judgment

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, "Denman Properties Limited v County Land Registrar Kilifi & 9 others (Environment and Land Case 150 of 2014) [2025] KEELC 5383 (KLR)", Case Analysis (2025). Not stated in the extract (Malindi ELC, arising from plaint filed July 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5383/eng@2025-07-10

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