[2022] KEHC 13652 (KLR)

Kang’atu & another v Kang’atu (Civil Appeal E003 of 2022) [2022] KEHC 13652 (KLR) (5 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13652 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E003 of 2022

LM Njuguna, J

October 5, 2022

Between

Passy Njeri Kang’atu

1st Appellant

Anthony Kiburu Kang’atu

2nd Appellant

and

Veronica Nyambura Kang’atu

Respondent

(Being an appeal against the ruling of Hon Nyongesa EW (PM) delivered on December 16, 2021 in Succession Cause No 32 of 2009 in the Principal Magistrate’s Court at Siakago.)

Judgment

1. The appeal herein arose from the ruling of Hon Nyongesa EW (PM) delivered on December 16, 2021 in Succession Cause No 32 of 2009 in the Principal Magistrate’s Court at Siakago.

2. The appellants’ case is premised on the fact that they filed for review and/or setting aside the consent orders of the court made on November 8, 2018 and also reinstating the applicant’s application dated September 10, 2018 for hearing and determination. That the appellants had on September 10, 2018 made an application seeking for revocation of grant of letters issued to the respondent on the basis that they are the children of the deceased herein and beneficiaries of the estate of the deceased. It is their case that they are children of the deceased while the respondent is a step mother of the appellants and wife of the deceased. That the respondent filed for petition of letters of administration without informing them, hence, the filing of application for revocation of grant dated September 10, 2018. That this prompted the consent signed between the parties which provided that the respondent transfers to the appellants three acres of land being 5 plots to be excised from LR Mbeti/kiamuringa/3657 and the balance be hived off from LR Mbeti/kiamuringa/3000 and that the restrictions and caution placed on all parcels of the land in the estate of the deceased be lifted.

3. Being dissatisfied with the said ruling, the appellants filed the appeal herein, in which, they listed fifteen grounds of appeal in the memorandum of appeal dated January 12, 2022.

4. The appeal proceeded by way of written submissions as had been directed by this court and only the appellants complied with the directions.

5. The appellants submitted that in good faith, they wanted to resolve a succession dispute by recording a consent while the respondent was hatching a plan to disinherit them. That while part of the three acres were to be hived from LR Mbeti/ Kiamuringa/3657, by the time the consent order was recorded on November 8, 2018, the parcels of land mentioned in the consent were non-existent and this was deliberately done by the respondent who misled the appellants and the court. That LR Mbeti/kamuringa/ 5351 is resultant parcel of LR Mbeti/ Kiamuringa/3657 and the only one available from the legacy of the deceased. Reliance was placed on the case of SMN v ZMS & 3 others [2017] eKLR.

6. It was their case that the consent was fraudulently procured by the respondent and on that basis, the appellants should be given a chance to prosecute the application for revocation of grant for them to have a chance at their father’s estate which in any event will not prejudice the respondent. The appellants submitted that the trial magistrate erred by holding that the appellants ought to have known the status of the parcels of land before entering into the consent. The appellants further relied on the case of East African Portland Cement Company Limited v Superior Homes Limited [2017] eKLR and in the end, the appellants urged this court to allow the appeal as prayed.

7. The appeal herein is based on the fact that the trial magistrate refused to grant orders inter alia, reviewing and/or setting aside the consent order entered on November 8, 2018.

8. In a nutshell, the application which was before the trial court was seeking to review and/or set aside the consent orders made on the 8. 11. 2018. It also sought for an injunction to issue restraining the respondent, her agents, servants and/or anybody else acting on her instructions from transferring, alienating, selling charging, leasing and/or dealing in any manner whatsoever with land parcel No Mbeti/ Kiamuringa/5351. The grounds in support of the application were that the consent orders could not be implemented for the reason that the parcels of land mentioned in the consent are non-existent and this was deliberately done by the respondent who misled the appellants and the court and as such, they sought that the said consent be set aside with an order allowing the application dated June 23, 2021.

9. The trial court delivered the impugned ruling dismissing the application wherein the court found that the application was bereft of merit.

10. It is this ruling which is the subject of this appeal.

11. I have considered and analyzed the pleadings and the submissions in this appeal and it is my view that the main issue for determination is whether the trial magistrate erred in law and fact in declining to set aside the consent order.

12. The Court of Appeal in Wangechi Kimita & another v Mutahi Wakibiru [1985] KLR 317; [1986] KLR 578; 1 KAR 977; [1976-1985] EA 229, while citing Sadar Mohamed v Charan Singh [1959] EA 793 expressed itself as follows:“Notwithstanding the contractual effect of a consent order section 67(2) of the Civil Procedure Act is not a bar to setting aside a judgement and decree by consent or grounds which would justify setting aside a contact…"

13. With respect to the grounds upon which such a consent would be set aside, the same court in Flora N Wasike v Destimo Wamboko [1988] KLR 429 held that it is well-settled law that a consent judgement or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract entered into by the parties, or if certain conditions remain unfulfilled, which are not carried out. In other words, prima facie, a consent order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court, or if the consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement.

14. The East African Court of Appeal on its part in Brooke Bond Liebig (T) Ltd v Mallya Civil Appeal No 18 of 1975 [1975] EA 266 expressed itself as follows;“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them…and cannot be varied or discharged unless obtained by fraud or collusion, or by agreement contrary to the policy of the court… or if the consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement… It is well settled that a consent judgement can be set aside only in certain circumstances, eg, on the ground of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable the court to set aside or rescind a contract.”

15. From the record, the court notes that the appellants had submitted that the consent orders could not be implemented for the reason that the parcels of land mentioned in the consent are non-existent.

16. In Hirani v Kassam [1952], 19 EACA 131, the Court of Appeal with approval quoted the following passage from Seton on Judgments and Orders, 7th Edition, Vol 1 p 124 as follows:“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court..... or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement."

17. Further, in the case of Kenya Commercial Bank Ltd v Specialized Engineering Co Ltd[1982] KLR 485 it was held that:“A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.

18. From the record, it is quite evident that the parties herein belong to one family and wherein the appellants are children of the deceased while the respondent is a step mother of the appellants and wife of the deceased. Notably, all the parties herein are beneficiaries of the estate herein. That the parties entered a consent which compromised the summons for revocation of the grant previously filed by the appellants.

19. As I have noted, the orders of the court issued on November 8, 2018 were a resultant of a consent dated November 8, 2018 by the parties. The contents of the consent are as follows;i)That the respondent do transfer to the applicants three (3) acres of land being five(5) plots to be excised from LR Mbeti/Kiamuringa/3657 and the balance be hived off from LR Mbeti/Kiamuringa/3000. ii)That the applicant do represent the other siblings and the share of three (3) acres be for the applicants and the other siblings.iii)That the restrictions and cautions placed in all parcels of the estate of the deceased herein be and are hereby set aside.

20. From the record, the respondent deponed that the appellants were responsible for the making of the whole consent and that they were the ones who had indicated the details of the land parcels in question. That they could not again turn around given that they were well aware of the same.

21. The respondent further reiterated that at the time of entry of the consent, LR No Mbeti/kiamutinga/5351 was not in existence and that the allegations of fraud must be proved which was not the case herein; and that the appellants were part of the entire process and if there was fraud and or misrepresentation, then they are equally culpable of the same.

22. In the case of RG Patel v Lalji Makanji (1967) EA 314, the former Court of Appeal for Eastern Africa stated thus:-“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required”

23. Fraud being a serious charge, it is trite law that it must be pleaded and strictly proved to the standard higher than the balance of probabilities but slightly lower than beyond reasonable doubt. Courts cannot infer fraud from the facts/ evidence in a case. The burden of proof lies with the one who alleges the fraud. It is the duty of the court, therefore, to determine if the plaintiff has successfully proved fraud on the part of the defendants.

24. In the case of Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000] eKLR, Tunoi, JA (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”

25. From the consent order, I note that indeed LR No Mbeti/ Kiamuringa/5351 was not part of the land to be considered for transfer to the appellants and that notwithstanding, the appellants submission that they were not aware of the positions of the parcels of land they listed for transfer is not tenable given that they are the ones who drafted the said consent which was later adopted by the court as its order.; I say so for the reason that it is indeed a well settled principle of law that parties are bound by their pleadings and that unless amended, the evidence adduced shall not deviate from the pleadings. This legal position was reaffirmed by the Court of Appeal in the case of David Sironga Ole Tukai v Francis Arap Muge & 2 others Civil Appeal No 76 of 2014 [2014] eKLR thus;“In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other’s case is as pleaded. The purpose of the rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense.”

26. The court, on its part, is itself bound by the pleadings of the parties. The duty of the court is to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice.

27. The foregoing position was also reiterated in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others Civil Appeal No 219 of 2013 [2014] eKLR.

28. As already noted, the parties herein are family members and as such, are aware of the extent of the parcels of land in the estate; they are the ones who drafted the consent that led to the adoption by the court as its order and further that, no tangible evidence was adduced before this court to prove fraud and or misrepresentation. I humbly hold the view that the orders sough herein cannot be granted.

29. The court has also noted, with concern, the contents of paragraph 8 of the respondent’s replying affidavit to the application dated the June 22, 2021 in which she has deposed that she gave five (5) plots of land to the appellants being LR Nos Mbeti/kiamuringa/5344 – 5348. This position has not been denied by the appellants.

30. As such, I find that the appeal herein has no merits and it is hereby dismissed with costs to the respondent.

31. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 5TH DAY OF OCTOBER, 2022. L NJUGUNAJUDGE........................for the appellant..........................for the respondent.