[2004] KEHC 2106 (KLR)
The court found that there was no evidence presented to warrant a review of the consent judgment or to nullify the sale of the disputed property. The applicants had previously admitted to instructing their advocates to enter into the consent judgment, and no grounds were disclosed to set aside what was essentially a...
Source-derived case information.
- Citation
- [2004] KEHC 2106 (KLR)
- Parties
- Plaintiff: Jane Akello Vocke; Plaintiff: Horst Vocke; Defendant: Trans-National Bank Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 430 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Review of Consent Judgment and Sale
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Judgment, Consent Judgment, Sale of Property, Order 44 Civil Procedure, Setting Aside Contract
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Akello Vocke
Plaintiff
Horst Vocke
Plaintiff
Trans-National Bank Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Consent Judgment and Sale
Legal Issues
- 1 Whether the consent judgment entered on 28/11/2001 should be reviewed or set aside.
- 2 Whether the sale of the disputed property by private treaty at below market price should be nullified.
Ratio Decidendi
The court found that there was no evidence presented to warrant a review of the consent judgment or to nullify the sale of the disputed property. The applicants had previously admitted to instructing their advocates to enter into the consent judgment, and no grounds were disclosed to set aside what was essentially a private contract. Furthermore, the purchaser of the property was not a party to the suit, and his rights would be prejudiced by any orders made against him. The application was therefore without merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for review and nullification is dismissed with costs.
Full Case Text
Judgment text and source record
9 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT MOMBASACIVIL CASE No.430 OF 2001 1. JANE AKELLO VOCKE……………………………..1ST PLAINTIFF 2. HORST VOCKE……………………………………..2ND PLAINTIFF =V E R S U S TRANS-NATIONAL BANK LTD………………………DEFENDANT
R U L I N G
The Applicant decree debtor seeks Review under Order XLIV rule 1 and Section 3A and Section 63(e) Civil Procedure Act, Cap.21.
Specifically, it is sought to nullify as sale of disputed property as the same was sold by private treaty at below market price. Also prayer to review judgment entered by consent of parties on 28/11/2001.
I have perused application together with supporting affidavit. I do not see any evidence to warrant a review under Order 44 Civil Procedure Code of consent judgment or any reason to review the sale complained of. The new purchaser is not a party to this suit. His rights would be prejudiced if orders were to be made against him.
As for reviewing consent judgments it is trite law that evidence be produced as would entitle a court of law to set aside a private contract. No such evidence is disclosed here. In fact the Defendant Horst Vocke has in a previous affidavit admitted that both him and the 1st Defendant did instruct their advocates “Melissa Moragi Advocates” to enter into the consent judgment complained of.
I therefore do not find any merit in this application. Same is dismissed with costs.
Dated this 29th day of July, 2004. JOYCE KHAMINWA J U D G E