[2021] KEELC 2134 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

ELC CASE NO. 174 OF 2014

ADOLFO GUZZINI.......................................................................1ST PLAINTIFF

ANNA TACCALITI GUZZINI....................................................2ND PLAINTIFF

VERSUS

EMMANUEL CHARO TINGA..................................................1ST DEFENDANT

JOHNSON KATANA KALUME................................................2ND DEFENDANT

KAPITA B SHENI.......................................................................3RD DEFENDANT

V. JABRON...................................................................................4TH DEFENDANT

CHIEF LANDS REGISTRAR....................................................5TH DEFENDANT

LOVE ISLAND BEACH RESORT LIMITED.........................6TH DEFENDANT

KADIDZI PROPERTIES LTD...................................................7TH DEFENDANT

THE HON. ATTORNEY GENERAL........................................8TH DEFENDANT

RULING

1. By their Notice of Motion dated 16th September 2020, Adolfo Guzini and Anna Taccaliti Guzini [the Applicants] pray for orders:

1) ................

2) That the firm of Tonia Mwania & Associates Advocates be allowed to come on record for the Plaintiffs/Applicants after judgment

3) .......

4) That this Honorable Court be pleased to issue an order of stay of execution of the orders of the court arising out of the consent judgement entered [therein] on the 10th April 2019 pending the hearing and determination of this suit.

5) That the proceedings of the court of 9th April 2018 leading to the consent judgement be set aside and the matter be set down for hearing on merit.

6) That the costs of this application be borne by the Respondents.

2. The Application which is supported by an affidavit sworn by the 1st Applicant Adolfo Guzzini is premised on the grounds that:

i) The Plaintiffs filed this suit sometime in 2014 through Ahmednassir, Abdikadir & Co. Advocates and instructed them to have conduct of the matter to its logical conclusion;

ii) To their great astonishment, the Plaintiffs who are foreigners based in Italy were informed that the matter was concluded on 9th April 2018 by way of a consent order the contents and effects whereof the Plaintiff were unaware of; and

iii) The consent was so adverse against the Plaintiffs that it offered a substantial part of the subject matter of the suit property to the Respondents to the detriment of the Plaintiffs.

3. The application is opposed. By their joint Grounds of Opposition dated 13th October 2020 and filed herein on 14th October 2020, Emmanuel Charo Tinga, Love Island Beach Resort Ltd and Kidzidz Properties Ltd [1st 6th and 7th Respondents respectively] oppose the motion on grounds that:

a) The Motion dated 16th September 2020 [is] unmeritorious, bad in law, incompetent and an abuse of the court process;

b) That there is no material placed before this court to vacate the orders of the consent judgment entered on 9th April 2018;

c) That the Plaintiffs in the recorded consent dated 9th April 2018 are contractually bound by its terms and there are no vitiating factors espoused by the Plaintiffs/Applicants do vary, discharge and/or set aside the subject consent judgement dated 9th April 2018;

d) That the Plaintiffs motion seeks equitable orders after unreasonable delay and acquiescence which is juridically untenable in the circumstances. Delay defeats equity and equity does not aid the indolent party;

e) This Honourable Court lacks jurisdiction to entertain this instant application as it is juridically functus officio the Plaintiffs Notice of Motion dated 16th September 2016 by virtue of the consent judgement entered by this Honouarable Court on 9th April 2018;

f) The Plaintiffs/Applicants application has been overtaken by events [as the] consent judgment orders dated 9th April 2018 sought to be reviewed and set aside have been perfected and/or acted [upon] to finality and therefor the instant application lacks basis and substance upon which the court can exercise its discretionary jurisdiction as sought in the Motion of 16th September 2020; and

g) This instant application is fraught with [a] pack of lies, material non-disclosures and dishonesty on the part of the Plaintiff/Applicants.

4. By way of further response to the application, the 7th Defendant has through its director Bhupendra Meghji Shah sworn a Replying Affidavit filed herein on the 15th October 2020 in which it reiterates the contents of the Grounds of Opposition and asserts that the application is frivolous and unmentorious and that the consent entered herein has since been registered at the District Land Registry at Mombasa.

5. The 7th Respondent further asserts that the subject consent was entered into by the Plaintiffs Advocates who had authority to enter into the same as an agent of the Plaintiffs and that hence the same is binding upon them.

6. Kapita B. Sheni [the 3rd Respondent] is equally opposed to the application. In his Replying Affidavit sworn and filed herein on 3rd November 2020, the 3rd Respondent avers that they did together with Johnson Katana Kalume [the 2nd Respondent] own the subject parcel of land measuring approximately 1. 5 Ha which land was subsequently demarcated before they were issued with titles in their names for Kilifi/Jimba /1126.

7. The 3rd Respondent avers that they subsequently sold the land to the 6th Respondent and executed transfer documents to that effect

8. I have carefully considered the Plaintiffs Motion and the response thereto by the Defendants. I have similarly considered the submissions and authorities placed before me by the Learned Advocates for the parties.

9. The subject matter of the application before me is the consent judgement entered herein on 10th April 2019. As at the time of endorsement of he said judgment by the court, the two Plaintiffs herein were represented by Messrs Ahmednassir Abdikadir & Company Advocates. Accordingly and pursuant to the requirements of Order 9 Rule 9 of the Civil Procedure Rules, the Plaintiffs have sought at prayer No. 2 of the application before me to have their new layers Messrs Tonia Mwania & Associates Advocates allowed to come on record and to act for themselves.

10. Arising from that prayer the previous lawyers were served with the present application and they were duly represented by an Advocate when the application first came up for hearing inter-partes on 5th October 2020. On the said date, the former lawyers sought time to file a response to the application and were granted 14 days to do so. No such response was however filed and this court will therefore proceed on the premise that there was no objection to the said prayer No. 2 and I hereby for the record, allow the same.

11. In their Supporting Affidavit to the Motion before me, the Plaintiffs aver that they gave instructions to their previous advocates on record to have the conduct of this matter on their behalf to its logical conclusion. Subsequently by a Plaint dated 24th August 2014 but filed herein on 24th September 2014, the Plaintiffs sought inter alia a declaration that they were the rightful proprietors of Plot No. 945 Watamu and that no other title could issue in respect of the said land or any part thereof and that the title held by the Defendants was therefore null and void.

12. In addition, the Plaintiffs sought for an order that an independent survey be undertaken for the purposes of establishing the delineations of the subject properties and the extent of encroachment of parcel No. Kilifi/ Jimba/1126 on the said Plot No. 945 Watamu.

13. From the record herein, it is apparent that the impugned consent was entered into shortly after an independent survey report on the extent of the encroachment was filed in court by Messrs Edward Kiguru Licensed Surveyors. The Applicants are aggrieved that while the survey clearly confirmed that part of their plot No. 945 Watamu had been encroached on by the said Kilifi/ Jimba/1126, the consent recorded herein implies that they had agreed to sign off part of their land contrary to their intention at the time of instituting the suit.

14. The Applicants submit that while a consent entered into on behalf of a party by their advocates is binding upon them, the same cannot stand where it is proved that the same was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts. The Applicants assert that they were never informed that by entering into the consent, they were literally ceding the portion of their land which they had come to court to recover in the first instance.

15. The principles that appertain to the setting aside of consent orders are well established in a line of case. In Brooke Bond Liebig –vs- Mallya [1975] EA 266, Mustafa V P considering a similar matter stated as follows:

“The compromise agreement was made an order of the court and was thus a consent judgement. It is well settled that a consent judgment can be set aside only in certain circumstances, e. g. on grounds of fraud of collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract....”

16. Similarly in Flora N. Wasike –vs- Destimo Wamboko [1998] eKLR,Hancox J A cited with approval Setton on Judgments and Orders [7th Edition] Vol. 1 page 124 and reiterated that:

“Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings, or action, and those claiming under them....and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court...; or if the consent was given without sufficient material facts, or in general for a reason which would enable a court set aside an agreement”

17. The above authorities are therefore clear that a consent order will only be set aside if it can be demonstrated that it was procured through fraud, non-disclosure of material facts or mistake or for a reason which would enable a court set it aside.

18. A perusal of the record herein reveals that when this matter came up in court on 9th April 2018, the Plaintiff’s Advocates then on record brought to the attention of the court the fact that there was a consent already executed and filed in court by the parties dated 6th April 2008 which consent they urged the court to adopt as an order of the court. Upon confirmation of the same by the Defence counsel, the court proceeded to adopt the consent which provides in the relevant part as follows:

“consent

Whereas:

a)

b)

c)

d)

e. The parties are desirous of resolving all issues relating to the two parcels of land:

NOW BY CONSENT OF THE PARTIES IT IS HEREBY RESOLVED AS FOLLOWS:

1. The disputed area more particularly identified in the aforesaid survey report by Edward Kiguru Licensed Surveyors, which area constitutes the extent of encroachment by Title No. Kilifi/ Jimba/1126 into plot No. 945 [original No. 655/12]; CR. No. 39218, be retained within the Title No. Kilifi/ Jimba/1126.

2. That delineations and boundaries of Plot no. 945 – [Original No. 655/12] be accordingly adjusted to give effect to the agreement in Number 1 above.

3. That the deed plan No. 254652 and all other necessary documentation relating to Plot No. 945 [original No. 655/12] be amended with a view of having the same reflect the current ground situation as captured in the survey report prepared by Kiguru Surveyors.

4. That a new title be issued to the Plaintiffs to reflect the amendments envisaged in Clause 1, 2 and 3 above.

5. That upon successful implementation of the terms of clause 1,2,3 & 4 above, the instant matter and all other pending court actions including but not limited to:

a. Judicial Review Miscellaneous Application No. 29 of 2014;

b. Republic –vs- Director of Survey & Another, Ex-parte Kidzidzi properties Ltd.

Involving the parties herein and relating to the above two parcels of land the subject of this consent, be marked as settled.

6. That each party to bear its own costs.

19. Some two [2] years after the consent was adopted as an order of the court, the Plaintiffs filed the present application seeking to have it set aside and for the matter to proceed to full trial on account that their advocates never sought their instructions and/or did not act as instructed.

20. At paragraph 9 of the supporting Affidavit, the Plaintiffs concede that their counsel then on record brought to their attention the fact that the matter had been brought to its logical conclusion on 9th April 2018. It is however their case that they were not informed of the particulars of the consent and that since they are based in Italy, they did not find out the contents until sometime in July 2020 when they instructed one Joseph Ngumbao Kiponda to conduct a search on the land at the District Lands Registry.

21. In my view and as correctly submitted by counsels for the 1st, 6th and 7th respondents, the Applicant’s previous Advocates just like the present one had an implied general authority to compromise the matter on behalf of the Plaintiffs. Speaking on the same issue in Kenya Commercial Bank Ltd –vs- Specialized Engineering Company Ltd [1982] KLR at page 485, Harris J put it this way:

“A duly instructed Advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the Notice of the other side. An advocate has general authority to compromise on behalf of his client, as long as he is acting bona fide and not contrary to express negative directions. In the absence of proof of any express negative direction, the order shall be binding.”

22. Similarly, in the matter before me the plaintiffs have not brought any proof of any negative directions given to their previous advocates. Having been informed of the compromise, it is difficult to see why it took them two years to learn of the contents thereof and/or before bringing the present application. It was also clear to me that the said consent order touched on other cases between the parties of which the Plaintiffs have said nothing

23. In the premises, I did not find any merit in the Plaintiffs’ application dated 16th September 2020. The same is dismissed with costs.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 31ST DAY OF AUGUST, 2021.

J.O. OLOLA

JUDGE