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ELCDismissedNot stated in the judgment· [2025] KEELC 7109 (KLR)

Marandu & 243 others v Paul & 2 others; M'mbetsa & 4 others (Intended Plaintiffs) (Enviromental and Land Originating Summons 1 of 2021) [2025] KEELC 7109 (KLR)

High Court of Kenya (Environment and Land Court seat, Malindi)
8 October 2025
EME. K. Makori
664 words in judgment
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The bottom line

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Kenya's Malindi Environment and Land Court ruled that fraud, collusion or mistake allegations against a consent judgment must be fully heard, not dismissed on a technicality.

What this practically means

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Executive summary

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This ruling by E. K. Makori, Judge, delivered virtually at Malindi on 8th October 2025, determines a preliminary objection dated May 2, 2025 in which the Respondents sought dismissal in limine of the Applicants' Notice of Motion dated April 7, 2025. The underlying motion sought rescission of a consent judgment dated 31st May 2021 on grounds that vitiate a contract, together with joinder of parties. The Respondents argued that the consent judgment was final and could not be challenged, the court having become functus officio. The Applicants countered that parties may be joined at any stage and that a consent judgment can be revisited where vitiating factors such as fraud, collusion, illegality or mistake are demonstrated. Adopting the classic definition of a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court held that an objection cannot succeed where facts must be ascertained. Relying on Samuel Mbugua Ikumbu v Barclays Bank of Kenya Limited, Flora Wasike v Destimo Wamboko and Brooke Bond Liebig v Mallya, the court reaffirmed that a consent judgment has contractual effect and may be set aside only on grounds justifying setting aside a contract. Since the Applicants alleged such vitiating factors, their issues could not be dismissed summarily. The preliminary objection was found to have no legal merit and was dismissed with costs, with the Applicants' motion to be heard substantively.

Key legal issues

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01

Whether the preliminary objection was sustainable

Holding

The PO failed because the Applicants alleged vitiating factors (fraud, collusion, illegality, etc.) against the consent judgment, which are factual matters that cannot be resolved summarily on a preliminary objection

Reasoning

The Respondents grounded their objection on the finality of a consent judgment of 31st May 2021, contending the court was functus officio. However, the Applicants alleged factors that would vitiate the underlying contract. Since the settled law permits variation or setting aside of a consent judgment on contractual vitiating grounds, and those grounds require ascertainment of facts, the objection was not a pure point of law and was dismissed with costs.

p. 3

Legal principles established

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  • A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised.
  • A consent judgment has contractual effect and can only be set aside or varied on grounds that would justify setting aside a contract, such as fraud, collusion, illegality or mistake.

Court orders

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  1. 1.The preliminary objection dated May 2, 2025 is dismissed with costs
  2. 2.The issues raised by the Applicants will be addressed substantively in their motion
Jurisdiction invoked
Inherent jurisdiction to determine preliminary objections; arises from Applicants' Notice of Motion dated April 7, 2025

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, "Marandu & 243 others v Paul & 2 others; M'mbetsa & 4 others (Intended Plaintiffs) (Enviromental and Land Originating Summons 1 of 2021) [2025] KEELC 7109 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7109/eng@2025-10-08

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