[2018] KEELC 1107 (KLR)
The court held that once a consent judgment is entered and adopted by the court, it settles the dispute between the parties and the court becomes functus officio, meaning it has no further jurisdiction over the matter except in exceptional circumstances such as fraud or mistake, which were not demonstrated in this...
Source-derived case information.
- Citation
- [2018] KEELC 1107 (KLR)
- Parties
- Plaintiff: Kantet Japit; Defendant: Koya Ole Kimolol; Applicant: Allan Obiero Onyango (Director, Applicant Company)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 124 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Consent and for Joinder as Interested Party
- Outcome
- application dismissed with costs
- Judges
- MN Kullow
- Legal Topics
- Consent Judgments, Joinder of Parties, Functus Officio, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kantet Japit
Plaintiff
Koya Ole Kimolol
Defendant
Allan Obiero Onyango (Director, Applicant Company)
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Consent and for Joinder as Interested Party
Legal Issues
- 1 Whether the court can set aside a consent order after it has been adopted by the court.
- 2 Whether the applicant can be enjoined as an interested party after the suit has been settled by consent.
- 3 Whether the court is functus officio after recording a consent judgment.
Ratio Decidendi
The court held that once a consent judgment is entered and adopted by the court, it settles the dispute between the parties and the court becomes functus officio, meaning it has no further jurisdiction over the matter except in exceptional circumstances such as fraud or mistake, which were not demonstrated in this case. Since the consent was entered into by duly instructed advocates and there was no evidence of fraud, the application to set aside the consent and for joinder as an interested party was without merit. Furthermore, there was no longer a subsisting suit in which the applicant could be joined, as the consent had disposed of the matter. The application was therefore dismissed...
Court Disposition
application dismissed with costs
Orders
- The application dated 24th August, 2017 is dismissed with costs to the plaintiff and defendant.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAROK
ELC CAUSE NO. 124 OF 2017
KANTET JAPIT........................................PLAINTIFF
-VERSUS-
KOYA OLE KIMOLOL.......................DEFENDANT
RULING
By an Application dated 24th August, 2017 filed under certificate of urgency and brought under order 1 Rule 10 (2) and Order 51 of the Civil Procedure Rules the Applicant sought for orders that the court stay the execution of orders given on 4th April, 2017 adopting a consent by the Plaintiff and Respondent, and the setting aside of the said orders and the Applicant enjoined in the suit as an interested party.
The application was based on the ground that the consent between the Plaintiff and the Respondent is prejudicial to the Applicant’s interest in Land Parcel No. Narok Cis Mara/Olkinyei/611as the parties entered into the said consent mischievously since the Defendant does not own any land known as Narok Cis Mara/Olkinyei/611.
The Applicant in an Affidavit in support of the Application sworn by Allan Obiero Onyango who is a director of the company stated that on the 24th June, 2014 the Applicant entered into a Sale Agreement with the Defendant/Respondent for a consideration of kshs. 5,950,000 and pending the completion of the sale the Applicant made a deposit of kshs. 4,900,000 and they obtained consent of the Land Control Board.
The Applicant further averred that on 4th April, 2017 the Plaintiff and the Respondent entered into a consent in disregard of his interest in the suit parcel of land.
The Application was opposed by the Plaintiff and argues that the court is functus officio and hence the claim is tantamount to opening the case. The plaintiff further argued that he is the legal and beneficial owner of the suit land and the Applicant’s claim lies against the Defendant and not him.
I have read the Application before me and the submissions made by the counsel and the issue for determination before me is whether there exists any suit before the court after a consent to settle the matter was filed and if the Applicant is capable of being enjoined as an interested party.
It is not indispute that the Plaintiff and the Defendant on the 4th April, 2017 entered a consent to settle the matter and it is after this consent was only filed that the Applicant mounted the instant application. It is my view that once a consent is entered between parties that fundamentally settles the disputes and the court down tools and becomes functus officio unless in appropriate circumstances such a parties seeking orders of setting aside, or stay or vacation and in the circumstances I find that there exists no suit capable of the Applicant being enjoined as an interested party.
The consent that were entered were made by advocates completely instructed and there is no shred of evidence to point out the same was obtained through fraud and thus the Application is devoid of any merit and I dismiss the same with costs.
DATED, SIGNED and DELIVERED in open court at NAROK on this 26th day of October, 2018.
Mohamed N. Kullow
Judge
26/10/18
In the presence of:
No appearance by the parties
CA:Chuma