[2009] KEHC 1784 (KLR)

[2009] KEHC 1784 (KLR)

The court held that once a suit is marked as settled by consent, the proceedings are closed and only the parties to the consent have liberty to apply under the consent order. The court found that the intended interested party could not be joined to a non-existent suit, and that substantive prayers such as injunctive relief or setting aside the consent order could only be sought by parties already on record. The court further held that injunctive relief under Order 39 of the Civil Procedure Rules is only available where there is a suit in existence, and that the applicant's remedy, if any, lay in filing a new suit. The preliminary objections by the plaintiff and defendant were upheld, and...

Citation
[2009] KEHC 1784 (KLR)
Parties
Plaintiff: Embasel Development Programme; Defendant: Renton Company Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
24 July 2009
Case Number
? 268 of 2009
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objections to Application for Joinder and Injunctive Relief After Suit Marked as Settled by Consent
Outcome
Preliminary objections upheld; application by intended interested party dismissed as premature and incompetent.
Legal Topics
Joinder of Parties, Consent Orders, Injunctive Relief, Locus Standi
Source Language
English
Civil Procedure Land and Property Joinder of Parties Consent Orders Injunctive Relief Locus Standi

Case Brief

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Parties

Embasel Development Programme

Plaintiff

Renton Company Limited

Defendant

Procedural Posture

Preliminary Objection / Ruling on Preliminary Objections to Application for Joinder and Injunctive Relief After Suit Marked as Settled by Consent

Legal Issues

  1. 1 Whether an interested party can be joined to a suit that has already been marked as settled by consent.
  2. 2 Whether the court can grant injunctive relief or set aside a consent order at the instance of a non-party after the suit is settled.
  3. 3 Whether the liberty to apply clause in a consent order extends to non-parties.

Ratio Decidendi

The court held that once a suit is marked as settled by consent, the proceedings are closed and only the parties to the consent have liberty to apply under the consent order. The court found that the intended interested party could not be joined to a non-existent suit, and that substantive prayers such as injunctive relief or setting aside the consent order could only be sought by parties already on record. The court further held that injunctive relief under Order 39 of the Civil Procedure Rules is only available where there is a suit in existence, and that the applicant's remedy, if any, lay in filing a new suit. The preliminary objections by the plaintiff and defendant were upheld, and...

Court Disposition

Preliminary objections upheld; application by intended interested party dismissed as premature and incompetent.

Orders

  • Prayers 3, 4, and 5 of the application are struck out as premature.
  • Liberty to apply under the consent order is limited to the plaintiff and defendant only.