[2004] KEHC 1358 (KLR)
The court held that a consent order can only bind the parties who have expressly agreed to it. In this case, the 2nd to 6th defendants were neither served with the application nor were they parties to the consent order entered between the plaintiffs and the 1st defendant. The purported consent order and the...
Source-derived case information.
- Citation
- [2004] KEHC 1358 (KLR)
- Parties
- Plaintiff: Dick Kamau Njuguna; Plaintiff: Davason Gichuki; Plaintiff: Daniel Baragu; Plaintiff: John Mwangi Njoroge; Plaintiff: Pascal Kamau; Plaintiff: Charles Maingi Macharia; Defendant: Nakuru Kiamunyeki Co. Ltd; Defendant: Stephen Mbote; Defendant: Evans Kiriungi; Defendant: Paul Chiera; Defendant: Moses Karanja; Defendant: Mathew Gitahi; Defendant: David Karuga
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 33 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Review and Setting Aside of Consent Order
- Outcome
- application allowed; consent order and subsequent court order set aside
- Legal Topics
- Review of Court Orders, Consent Orders, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dick Kamau Njuguna
Plaintiff
Davason Gichuki
Plaintiff
Daniel Baragu
Plaintiff
John Mwangi Njoroge
Plaintiff
Pascal Kamau
Plaintiff
Charles Maingi Macharia
Plaintiff
Nakuru Kiamunyeki Co. Ltd
Defendant
Stephen Mbote
Defendant
Evans Kiriungi
Defendant
Paul Chiera
Defendant
Moses Karanja
Defendant
Mathew Gitahi
Defendant
David Karuga
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review and Setting Aside of Consent Order
Legal Issues
- 1 Whether a consent order can bind parties who were not part of the consent.
- 2 Whether failure to serve an application on all affected parties invalidates subsequent orders.
- 3 Whether the court should review and set aside a consent order entered without participation of all defendants.
Ratio Decidendi
The court held that a consent order can only bind the parties who have expressly agreed to it. In this case, the 2nd to 6th defendants were neither served with the application nor were they parties to the consent order entered between the plaintiffs and the 1st defendant. The purported consent order and the subsequent court order dated 11th May 2004 affected the rights of the 2nd to 6th defendants without their participation or consent, rendering the orders illegal and incapable of standing. The court found that the failure to serve the application on all affected parties was a fundamental procedural flaw. Consequently, the court reviewed and set aside both the consent order and the...
Court Disposition
application allowed; consent order and subsequent court order set aside
Orders
- The application by the 2nd to 6th defendants is allowed.
- The order of the court dated 11th May 2004 is reviewed and set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU CIVIL CASE NO. 33 OF 1998
DICK KAMAU NJUGUNA……..………….…….1ST PLAINTIFF
DAVASON GICHUKI…………...………….……2ND PLAINTIFF
DANIEL BARAGU……………..………….…….3RD PLAINTIFF
JOHN MWANGI NJOROGE……..………….…..4TH PLAINTIFF
PASCAL KAMAU………………….……..……..5TH PLAINTIFF
CHARLES MAINGI MACHARIA….….....………6TH PLAINTIFF
VERSUS
NAKURU KIAMUNYEKI CO. LTD…....…...….1ST DEFENDANT
STEPHEN MBOTE……..…………..…....……2ND DEFENDANT
EVANS KIRIUNGI……..…………...…………3RD DEFENDANT
PAUL CHIERA……..………………………….4TH DEFENDANT
MOSES KARANJA………………...………...5TH DEFENDANT
MATHEW GITAHI……...……………..………6TH DEFENDANT
DAVID KARUGA……...………………………7TH DEFENDANT
RULING
The Applicants herein have made an application under Order L rule 1, Order XLIV Rule 1(a) of the Civil Procedure Rules, Sections 3A, 63(e) and 80 of the Civil Procedure Act seeking the orders of this Court to review or set aside the order of this Court issued on the 7th of May 2004 and dated the 11th of May 2004. The Application is grounded on the legal reasons stated on the face of the Application and supported by the annexed affidavit of Mathew Gitahi, the 6th Defendant. The Application is opposed.
The Respondents have filed a replying affidavit in opposition to the Application.
Mr Karanja, Learned Counsel for the 2nd to the 6th Defendants, (who are the applicants) argued their application on their behalf when the same came up for hearing before this Court. The Plaintiffs were served but they did not file any papers in support or in opposition of the Application. The 1st Defendant however opposed the Application. It was represented by Mr Waiganjo during the argument of the Application.
This Application to review the order of this Court dated the 11th of May 2004 arose from a consent order that was filed in Court and dated the 4th of May 2004. The said consent was entered between the Plaintiffs and the 1st Defendant. The 2nd to the 6th Defendants were not party to the said consent order. The said consent order purportedly allowed the Application which was filed by the 1st Defendant and which was dated the 8th of December 2003. The said Application was not served upon all the parties to the suit. It is only the Plaintiffs who were served with the Application. The 2nd to the 6th Defendants were not served with the said Application yet the prayers sought in the said application were far reaching and would affect the rights of the 2nd to 6th Defendants who are Defendants in this suit. When the Plaintiffs and the 1st Defendant thus compromised the application by consent on the 4th of May 2004, it affected the rights of the 2nd to the 6th Defendants who were not parties to the said Application. Neither were they parties to the said consent. The order of this Court dated the 11th of May 2004 purportedly endorsing the consent of the 1st Defendant and the Plaintiffs compromising the suit is therefore not a true reflection of the consent of the parties to the suit. The 2nd to the 6th Defendants were excluded. In so far as the Plaintiffs’ and the 1st Defendant were purporting to bind the 2nd to the 6th Defendants in the said consent order, the said consent order was illegal and could not stand. A consent order can only be binding upon the parties who entered into it. Some litigants in a suit cannot purport to enter into a consent order binding other parties who did not agree to the said consent order.
In the premises therefore, the Application filed in Court on the 5th of May 2004 by the 2nd to the 6th Defendant is hereby allowed. The order of this Court dated the 11th of May 2004 which was issued pursuant to the consent order of the 1st Defendant and the Plaintiffs is hereby reviewed and set aside. The consent order purportedly entered between the Plaintiffs and the 1st Defendant dated the 4th of May 2004 is also set aside.The 1st Defendant is ordered to serve the Application dated the 8th of December 2003 upon the 2nd to the 6th Defendants so that the same can be heard by the High Court at the date to be fixed at the registry. The Applicants shall have the costs of this application.
DATED at NAKURU this 1st day of October, 2004.
L. KIMARU
AG. JUDGE