[2005] KEHC 1399 (KLR)
The court held that the application to set aside the consent order was procedurally defective, having been brought under the wrong provision of the Civil Procedure Rules. Even if the procedural defect could be cured, the application lacked merit because it was brought nearly five years after the consent order was...
Source-derived case information.
- Citation
- [2005] KEHC 1399 (KLR)
- Parties
- Plaintiff: Joram Ole Tome; Plaintiff: Another (unspecified); Defendant: Meschack Ole Tome; Defendant: Another (unspecified)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 5961 of 1993
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Consent Order
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Setting Aside Consent Orders, Review of Judgments, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joram Ole Tome
Plaintiff
Another (unspecified)
Plaintiff
Meschack Ole Tome
Defendant
Another (unspecified)
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the application to set aside the consent order was properly brought under the Civil Procedure Rules.
- 2 Whether sufficient grounds such as fraud or mistake were established to warrant setting aside the consent order.
- 3 Whether delay in bringing the application affects its merit.
Ratio Decidendi
The court held that the application to set aside the consent order was procedurally defective, having been brought under the wrong provision of the Civil Procedure Rules. Even if the procedural defect could be cured, the application lacked merit because it was brought nearly five years after the consent order was recorded, with no explanation for the delay, and there was no allegation or evidence of fraud or mistake. The absence of certain parties at the time the consent was recorded did not vitiate the consent, as the order was signed by the relevant parties and their legal representatives. Accordingly, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to set aside the consent order is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
11 paragraphs
REPULIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI Civil Case 5961 of 1993JORAM OLE TOME & ANOTHER …………..…………… PLAINTIFFS VERSUS MESCHACK OLE TOME & ANOTHER ……………… DEFENDANTSRULING The Applicant seeks to set aside a consent order recorded before Mr. Justice Ole Keiwa on the 13. 10. 99 nearly six years ago. The ground is that the 1st Plaintiff and fourth Defendant were not present.
The consent is signed by 2nd Plaintiff and 1st Defendant and a legal representative of 1st Plaintiff. It appears that the 1st Plaintiff was deceased at the time.
Mr. Chacha objects that the Application is brought wrongly under Order IXB rule 8, which applies to non-attendance of parties at a hearing.
He relied onMunyiri Versus Ndunguya (1985) KLR page 370 which states an application to set aside a consent Judgment must be by way of review. Alternatively a suit can be filed. The reason for setting aside a court Judgment is that there is either fraud or mistake.
He also relied on Hirrani versus Kassam {1952} E.A.C.A. Vol.19 page 131, which states that the reason for interfering with a disputed claim compromised can only be in circumstances, which would afford good grounds for varying or rescinding a contract.
I agree that this Application is brought under the wrong order of the Civil Procedure Rules. However if there was merit in their application I would allow an amendment.
However the Applicant fails on two grounds.
1. It is brought nearly five years after the court order was recorded and lacks bona fides as no reason is given for the delay.
2. No allegation is made of either fraud or mistake sufficient to set aside the order. The order was recorded in the presence of counsel for both parties and is signed by the 2nd Defendant and fourth Defendant. The absence of the 1st Plaintiff and 2nd Plaintiff does not vitiate the consent. For these reasons I dismiss this application with costs to the Respondent.
Dated and delivered at Nairobi this 14th day of July,2005
P.J. RANSLEY JUDGE