[2017] KEELC 173 (KLR)
The court held that while there are established grounds for setting aside a consent order—such as fraud, collusion, or misapprehension of material facts—an oral application is not the appropriate procedural vehicle for such relief. The court declined to delve into the merits of the oral application and instead...
Source-derived case information.
- Citation
- [2017] KEELC 173 (KLR)
- Parties
- Applicant: Beatrice Wambui Kiarie; Applicant: Margaret Wanjiru Nzioka; Applicant: Ruth Kariti Kahia; Respondent: Tabitha Wanjiku Ng’ang’a; Respondent: Reuben Kamau Muiruri; Respondent: Philip Waweru Kuria; Respondent: John Muchuku Kuria; Respondent: Beatrice Wambui Ng’ang’a; Respondent: Lucy Wabai Kuria; Respondent: Josephat Ndungu Kuria; Respondent: Stephen Mwang Kuria; Respondent: Jeniffer Wagio Ng’ang’a (administrator of Estate of Denis Ng’ang’a Kuria); Respondent: Esther Watiri Gitau (administrator of Estate of Joseph Gitau Kuria)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyahururu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 265 of 2017
- Procedural Posture
- Land and Environment Case / Ruling on Oral Application to Set Aside Consent Order
- Outcome
- Oral application to set aside consent order declined; plaintiffs/applicants directed to file formal application within 14 days.
- Legal Topics
- Consent Orders, Setting Aside Orders, Compliance With Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Wambui Kiarie
Applicant
Margaret Wanjiru Nzioka
Applicant
Ruth Kariti Kahia
Applicant
Tabitha Wanjiku Ng’ang’a
Respondent
Reuben Kamau Muiruri
Respondent
Philip Waweru Kuria
Respondent
John Muchuku Kuria
Respondent
Beatrice Wambui Ng’ang’a
Respondent
Lucy Wabai Kuria
Respondent
Josephat Ndungu Kuria
Respondent
Stephen Mwang Kuria
Respondent
Jeniffer Wagio Ng’ang’a (administrator of Estate of Denis Ng’ang’a Kuria)
Respondent
Esther Watiri Gitau (administrator of Estate of Joseph Gitau Kuria)
Respondent
Procedural Posture
Land and Environment Case / Ruling on Oral Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order made on 24th April 2017 should be set aside on grounds of vagueness and ambiguity.
- 2 Whether an oral application is sufficient to set aside a consent order or if a formal application is required.
Ratio Decidendi
The court held that while there are established grounds for setting aside a consent order—such as fraud, collusion, or misapprehension of material facts—an oral application is not the appropriate procedural vehicle for such relief. The court declined to delve into the merits of the oral application and instead directed the plaintiffs/applicants to file and serve a formal application to set aside the consent order made on 24th April 2017 within 14 days. The court thus reinforced the binding nature of consent orders and the necessity of following proper procedural channels to challenge them.
Court Disposition
Oral application to set aside consent order declined; plaintiffs/applicants directed to file formal application within 14 days.
Orders
- Plaintiffs/Applicants to file and serve a formal application to set aside the consent order made on 24th April 2017 within 14 days.
- Matter to proceed upon filing of the formal application.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE LAND AND ENVIRONMENT COURT AT NYAHURURU
CASE NO.265 OF 2017
BEATRICE WAMBUI KIARIE.................................1st PLAINTIFF/APPLICANT
MARGARET WANJIRU NZIOKA.........................2nd PLAINTIFF/APPLICANT
RUTH KARITI KAHIA............................................3rd PLAINTIFF/APPLICANT
-V E R S U S-
TABITHA WANJIKU NG’ANG’A....................1st DEFENDANT/RESPONDENT
REUBEN KAMAU MUIRURI.........................2nd DEFENDANT/RESPONDENT
PHILIP WAWERU KURIA..............................3rd DEFENDANT/RESPONDENT
JOHN MUCHUKU KURIA..............................4th DEFENDANT/RESPONDENT
BEATRICE WAMBUI NG’ANG’A..................5th DEFENDANT/RESPONDENT
LUCY WABAI KURIA......................................6th DEFENDANT/RESPONDENT
JOSEPHAT NDUNGU KURIA........................7th DEFENDANT/RESPONDENT
STEPHEN MWANG KURIA...........................8th DEFENDANT/RESPONDENT
JENIFFER WAGIO NG’ANG’A (Sued asthe administrator.
of Estate of DENIS NG’ANG’A KURIA.........9th DEFENDANT/RESPONDENT
ESTHER WATIRI GITAU (Sued as the administrator of the
Estate of JOSEPH GITAU KURIA)..............10th DEFENDANT/RESPONDENT
RULING
On the 24th April 2017 the above captioned matter came before me for mention to take directions wherein M/s Chelagat Advocate held brief for M/s Mukira Advocate for the Plaintiffs/Applicants while the Defendants/Respondents was represented by Mr. Karanja Advocate.
M/s Chelagat informed the court that parties had entered into a consent to wit:
1. Have the application dated the 2nd September 2016 marked as compromised.
2. That parties take dates to confirm compliance.
The position was confirmed by Mr. Karanja, counsel for the defendant and the court went ahead to adopt the said consent giving parties 30 days to comply with order 11 of the Civil Procedure Rules. The matter was set down for the 29th May 2017 for mention to confirm compliance.
On the said date, M/s Mukira Advocate appeared before me orally submitted that the order issued on the 24th April 2017 compromising their application dated the 2nd September 2016 was vague and ambiguous as it did not contain the terms of the compromise. She then asked the court to set aside the said orders.
I have considered the oral application made by counsel for the plaintiffs to set aside the orders issued on the 24th April 2017 and the opposing response from the Defendants’ counsel therein.
In Hirani v. Kassam (1952), 19EACA 131, the court of Appeal quoted the following passage from Seton on Judgments and Orders, 7th edition, Vol.1 p.124 as follows:
“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on 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 consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement."
Be as it may, at this juncture, I do not wish to go into depth of the oral application submitted.
I do hereby direct the Plaintiffs/Applicants to file and serve their formal application, to set aside the consent order made on the 24th April 2017, within the next 14 days,
Dated and delivered at Nyahururu this 31st day of May 2017.
M.C. OUNDO
JUDGE OF ELC NYAHURURU