[2014] KEHC 7571 (KLR)
The court found that the applicant failed to demonstrate any error on the face of the record or discovery of new evidence that was unavailable at the time the consent orders were made. Furthermore, there was no evidence of fraud or misrepresentation in the recording of the consent orders. The court relied on the...
Source-derived case information.
- Citation
- [2014] KEHC 7571 (KLR)
- Parties
- Applicant: Applicant (Name not specified); Respondent: Respondents (Names not specified)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 705 of 1996
- Procedural Posture
- Succession Cause / Ruling on Application to Review or Set Aside Consent Orders
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Review of Court Orders, Consent Orders, Succession and Estate Distribution, Fraud and Misrepresentation, Setting Aside Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicant (Name not specified)
Applicant
Respondents (Names not specified)
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Review or Set Aside Consent Orders
Legal Issues
- 1 Whether the consent orders recorded on 2nd May 2006 should be reviewed or set aside.
- 2 Whether the applicant has established grounds of fraud or misrepresentation to justify setting aside the consent orders.
- 3 Whether the applicant has demonstrated error on the face of the record or discovery of new evidence to warrant review.
Ratio Decidendi
The court found that the applicant failed to demonstrate any error on the face of the record or discovery of new evidence that was unavailable at the time the consent orders were made. Furthermore, there was no evidence of fraud or misrepresentation in the recording of the consent orders. The court relied on the principle that consent orders are akin to contracts and can only be set aside on grounds that would justify setting aside a contract. As the applicant did not meet these thresholds, the application for review or setting aside the consent orders was dismissed.
Court Disposition
application dismissed with costs
Orders
- The application dated 18th September 2008 is dismissed with costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
SUCCESSION CAUSE NO. 705 OF 1996
IN THE MATTER OF THE ESTATE OF GICHUNJI KIMANI –(DECEASED)
RULING
1. The application for determination is dated 15th September 2008. It seeks the review or setting aside of consent orders that were recorded by the on 2nd May 2006. The applicant alleges that the said orders were recorded fraudulently, without informing all the beneficiaries and dependents of the estate. He says that the said orders affect him adversely in terms of his company of the effect parcels of land.
2. In reply the respondents argue that the decision to record the consent was reached at a family meeting where the family agreed on the distribution of the property. The applicant is said to have sold his part of the land to defect the consent orders.
3. The application is grounded on the provision of the land governing review. To obtain review it must be demonstrated that there was either an error ……on the face of the record on, There is new matter that no one was available at the time the orders were made. In this case the applicant has not sought to show that there are errors on the fact of the record on discovery of evidence that could not be availed at the time when the orders were made. There is no basis for the review of the orders.
4. On the setting aside of the consent orders, it is confident to point out that the land there on was settled in Wanjiku –vs- Wamboko (1988) KLR 429 where it was held that a consent order has a contracted effect and can only be set aside on grounds which would justify setting aside a contract, or if certain conditions remain to be fulfilled which are not carved out. A contract will be set aside for forward or misrepresentation. I have carefully gone through the record and I see nothing that points to fraud or misrepresentation with respect to the consent avers in question.
5. I find no merit on the application dated 18th September 2008, and I hereby dismiss the same with costs.
DATED, SIGNED and DELIVERED at NAIROBI this31st DAY OF January, 2014.
W. MUSYOKA
JUDGE