[2011] KEHC 1024 (KLR)
The court found that the applicant failed to provide any substantiated evidence that his advocate acted without instructions or that there was any condition precedent to the consent order that was not met. The consent order was entered in the presence of counsel for both parties, making it binding. The applicant's...
Source-derived case information.
- Citation
- [2011] KEHC 1024 (KLR)
- Parties
- Appellant: Munyi Kibuana; Appellant: Gilbert Njeru; Appellant: Patrick Nthia Mati; Appellant: Namu Mukungu; Respondent: Henry Mugo Njeru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 60 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Review or Set Aside Consent Order
- Outcome
- application dismissed with costs
- Legal Topics
- Consent Judgments, Review of Orders, Land Title Disputes, Jurisdiction of Land Tribunals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Munyi Kibuana
Appellant
Gilbert Njeru
Appellant
Patrick Nthia Mati
Appellant
Namu Mukungu
Appellant
Henry Mugo Njeru
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Review or Set Aside Consent Order
Legal Issues
- 1 Whether the consent order entered on 30/9/2008 should be reviewed or set aside.
- 2 Whether the applicant's advocate acted without instructions in entering the consent order.
- 3 Whether the Land Disputes Appeals Committee had jurisdiction to award title to land.
Ratio Decidendi
The court found that the applicant failed to provide any substantiated evidence that his advocate acted without instructions or that there was any condition precedent to the consent order that was not met. The consent order was entered in the presence of counsel for both parties, making it binding. The applicant's recourse, if any, lies in filing a substantive suit for a claim of land, subject to statutory limitations. The court also noted that the Land Disputes Appeals Committee lacked jurisdiction to award title to land, but this did not affect the validity of the consent order entered in court. Consequently, the application to review or set aside the consent order was dismissed for...
Court Disposition
application dismissed with costs
Orders
- The Notice of Motion dated 27/4/2010 is dismissed with costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL NO 60 OF 2006
MUNYI KIBUANA.....................................................................................1ST APPELLANT
GILBERT NJERU....................................................................................2ND APPELLANT
PATRICK NTHIA MATI...........................................................................3RD APPELLANT
NAMU MUKUNGU....................................................................................4TH APPELLANT
VERSUS
HENRY MUGO NJERU..................................................................................RESPONDENT
(An Appeal from the decision of the Eastern Provincial Land Disputes Appeals Committee in Appeal Case No.92 of 2003)
R U L I N G
This is the Notice of Motion dated 27/4/2010. It’s for Orders that the Consent Order made on 30/9/2008 be reviewed and or be set aside. And that the Mbeere District Land Registrar deletes the name of Njeru Njagi entered on the suit land EVURORE/NGUTHI/2232 on 19/11/2009 pursuant to the Consent.
The main ground is that the Applicant never gave his lawyer instructions to enter into the Consent. That his former advocate never revealed to him anything about the Consent. He only learnt of it after getting a certificate of search on the land.
The 2nd Appellant/Respondent put in a replying affidavit. He insists that the Applicant consulted with his lawyer before the entry of the Consent.
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.
The Consent Order complained of was made by this court on 30/9/2008 in the presence of Mr. Mwaniki for the Appellants and Mr. Mogusu for the Respondent. By consent the Appeal dated 15/8/2006 was allowed and the file closed with each party paying its own costs. The Applicant/Respondent now says he never instructed his lawyer to do so. In the case of GICHUKI –VS- MUNJUA & 2 OTHERS [2004] 2 KLR 112 it was held that only conditions the non-performance of which could give rise to the setting aside of a Consent Judgment would be conditions coming into force of the Consent and not the terms of the Consent itself.
The Applicant says that as he never gave instructions to his former Counsel and as a result of the Consent he has lost 30 acres of land. The record shows that Mr. Mogusu had been acting for the Applicant/Respondent since 2006. There is no reason given why Mr. Mogusu would act contrary to the instructions given by his client. A look at the Appeal shows that the Appeals Committee had acted ultra vires its jurisdiction in awarding title to land. Its now settled land that Land Tribunals & Appeals Committees have no jurisdiction to deal with issues of Title under Section 3(1) of the Land Disputes Tribunal Act No.18/90. See CATHOLIC DIOCESE OF MURANG’A REGISTERED TRUSTEES 2003 KLR 389.
The Applicant has not raised any substantiated condition precedent to the presentation of this Consent to the court. Counsel acted on the Applicants’ instruction. The Applicants avenues are not closed. He can still file a substantive suit for a claim of land unless he is time barred by statute.
I find no merit in the Notice Motion which I hereby dismiss with costs.
DATED, SIGNED AND DELIVERED AT EMBU THIS 14TH DAY OF DECEMBER 2011.
H.I. ONG’UDI
JUDGE