[2012] KEHC 1293 (KLR)
The court held that the applicant had not demonstrated sufficient grounds, such as fraud, mistake, or misrepresentation, to justify setting aside the consent orders recorded on 4th May, 2011. The applicant's inability to pay the awarded costs, based on her financial status, does not constitute a valid legal ground...
Source-derived case information.
- Citation
- [2012] KEHC 1293 (KLR)
- Parties
- Respondent: Michael Onzere Angalika; Applicant: Sarah Atemo Ingutu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 843 of 2007
- Procedural Posture
- Succession Cause / Ruling on Application to Review, Quash or Set Aside Consent Orders
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Court Orders, Setting Aside Consent Judgment, Costs Award, Grounds for Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Onzere Angalika
Respondent
Sarah Atemo Ingutu
Applicant
Procedural Posture
Succession Cause / Ruling on Application to Review, Quash or Set Aside Consent Orders
Legal Issues
- 1 Whether the applicant has established sufficient grounds to warrant review, quashing or setting aside of the consent orders made on 4th May, 2011.
- 2 Whether inability to pay the awarded costs constitutes a valid ground for setting aside a consent judgment.
Ratio Decidendi
The court held that the applicant had not demonstrated sufficient grounds, such as fraud, mistake, or misrepresentation, to justify setting aside the consent orders recorded on 4th May, 2011. The applicant's inability to pay the awarded costs, based on her financial status, does not constitute a valid legal ground for reviewing or setting aside a consent judgment. The law is settled that consent judgments are binding unless vitiated by factors that would affect the validity of a contract. As such, the application to review, quash, or set aside the consent orders was dismissed.
Court Disposition
application dismissed with costs
Orders
- The application dated 23.1.12 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
High Court at Kakamega
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MICHAEL ONZERE ANGALIKA …. …..………….….. PETITIONER
AND
SARAH ATEMO INGUTU …………….…. OBJECTOR/APPLICANT
R U L I N G
The application by way of Notice of Motion dated 23. 1.12 seeks orders that this court do review, quash or set aside the orders herein made on 4th May, 2011.
The application is supported by the affidavit in support sworn on 23. 1.12 by the applicant, SARAH A. INGUTU. According to the said affidavit the court made orders for the applicant to pay the respondent Kshs.25,000/=. The applicant has averred that she is unable to raise the said sum of Kshs.25,000/= as she relies on “casual jobs”.
In opposition to the application, the respondent, MICHAEL ONZERE ANGALUKA swore a replying affidavit on 18. 6.12. The respondent saw no merits in the application. The respondent termed the application as incompetent and stated that the applicant is not a widow as stated in the applicant’s affidavit. The applicant however stated in court that the term “widow” is an error on her part due to her being illiterate and the correct position is that her husband is a person of unsound mind.
The applicant has given her financial status as the reason why she cannot be able to pay the Kshs.25,000/= costs awarded by the court.
However, “it is settled law that a consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract, for example fraud, mistake or misrepresentation” (see FLORA N. WASIKE VS DESTIMO WAMBOKA [1982 – 88] I KAR 625.
The applicant has therefore not shown sufficient reasons why the court should interfere with consent orders recorded on 4. 5.2011.
The application is dismissed with costs.
Delivered, dated and signed at Kakamega this 4th day of October, 2012
B. THURANIRA JADEN
J U D G E