[2016] KEHC 2460 (KLR)
The court held that a consent order is binding and can only be set aside on specific grounds analogous to those for setting aside a contract, namely illegality, fraud, misrepresentation, coercion, or undue influence. The applicant failed to demonstrate any of these grounds in the motion dated 26th September 2014....
Source-derived case information.
- Citation
- [2016] KEHC 2460 (KLR)
- Parties
- Applicant: Applicant; Respondent: Respondents
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 2274 of 2012
- Procedural Posture
- Succession Cause / Ruling on Application to Set Aside Consent Order
- Outcome
- application dismissed with costs to the respondents
- Judges
- DN Musyoka
- Legal Topics
- Consent Orders, Setting Aside Orders, Succession Estates, Distribution of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Applicant
Applicant
Respondents
Respondent
Procedural Posture
Succession Cause / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order recorded on 15th July 2014 can be set aside.
- 2 Whether the applicant has established grounds such as illegality, fraud, misrepresentation, coercion or undue influence to justify setting aside the consent order.
Ratio Decidendi
The court held that a consent order is binding and can only be set aside on specific grounds analogous to those for setting aside a contract, namely illegality, fraud, misrepresentation, coercion, or undue influence. The applicant failed to demonstrate any of these grounds in the motion dated 26th September 2014. Consequently, there was no basis for the court to set aside the consent order recorded on 15th July 2014. The application was therefore dismissed with costs to the respondents.
Court Disposition
application dismissed with costs to the respondents
Orders
- The Motion dated 26th September 2014 is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO. 2274 OF 2012
IN THE MATTER OF THE ESTATE OF PATROBA NDURI MBAI
(DECEASED)
RULING
1. The Motion dated 26th September 2014 seeks setting aside of orders made on 15th July 2014. .
2. The impugned order was recorded before Kimaru J by consent. It states:-
‘By consent, the 4 parcels of land be valued, and thereafter there shall be equal distribution of the same among the 4 houses of the deceased to be held in trust by the widows for the children. The 2nd house will later care for the protestor’s interest. Mention on 6th October 2014. ’
3. Counsel appearing thereafter signed on the record.
4. A consent order has the same force of law as a contract. It can only be set aside on the same grounds and for the same reasons as would justify setting aside a contract. These grounds and reasons include illegality, fraud, misrepresentation, coercion and undue influence.
5. There is nothing in the Motion dated 26th September 2014 that brings out the grounds for setting aside the consent order on record.
6. I find no basis at all upon which I can set aside the order recorded on 15th July 2014. The Motion dated 26th September 2014 must accordingly fail. It is hereby dismissed with costs to the respondents.
7. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 26TH DAY OF OCTOBER, 2016.
W. MUSYOKA
JUDGE