[2020] KEHC 9934 (KLR)
The court found that the application to set aside the consent order was res judicata, as a similar application had previously been dismissed by Kasango J. on 13th June 2018. The plaintiffs failed to demonstrate any new grounds such as fraud, mistake, or undue influence that would warrant setting aside the consent...
Source-derived case information.
- Citation
- [2020] KEHC 9934 (KLR)
- Parties
- Plaintiff: Joseph Wangombe Thuo; Plaintiff: Jane Wanjiru Wangombe; Defendant: Bank of Africa Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 128 of 2018
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Consent Order
- Outcome
- application dismissed with costs to the defendant
- Judges
- DAS Majanja
- Legal Topics
- Res Judicata, Setting Aside Consent Orders, Fraud in Contracts
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Wangombe Thuo
Plaintiff
Jane Wanjiru Wangombe
Plaintiff
Bank of Africa Limited
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 is res judicata.
- 2 Whether grounds for setting aside the consent order such as fraud, mistake, or undue influence have been established.
Ratio Decidendi
The court found that the application to set aside the consent order was res judicata, as a similar application had previously been dismissed by Kasango J. on 13th June 2018. The plaintiffs failed to demonstrate any new grounds such as fraud, mistake, or undue influence that would warrant setting aside the consent order. Consequently, the application was dismissed with costs to the defendant.
Court Disposition
application dismissed with costs to the defendant
Orders
- The plaintiffs' application dated 25th September 2019 is dismissed.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL AND TAX DIVISION
CORAM: D. S. MAJANJA J.
CIVIL CASE NO. 128 OF 2018
BETWEEN
JOSEPH WANGOMBE THUO........................................1ST PLAINTIFF
JANE WANJIRU WANGOMBE......................................2ND PLAINTIFF
AND
BANK OF AFRICA LIMITED............................................DEFENDANT
RULING NO. 2
The Plaintiffs’ application is dated 25th September 2019 seeking to set aside a consent order between the parties dated 24th November 2015 and subsequent sale of the suit property pursuant to the consent is not merited as Kasango J., dealt with similar application and on 13th June 2018 dismissed it. This application is now res judicata in so far as it seeks to raise the same issues regarding the consent. The consent likewise cannot be set aside as the grounds for setting aside like fraud, mistake, undue influence have not been proved.
The application is therefore dismissed with costs to the defendant
DATEDAND DELIVERED AT NAIROBI THIS 21ST DAY OF JULY 2020.
D. S. MAJANJA
JUDGE
Mr Wawire instructed by Wamae and Allen Advocates for the Defendant.
Muturi Njoroge and Company Advocates for the plaintiffs.