[2020] KEELC 3226 (KLR)
The court found that the consent order was expressly conditional upon the plaintiff paying Kshs. 1,550,000 within 30 days. Since the applicant (defendant) had not received the payment, which was a condition precedent to the transfer of the land, the consent order could not be actualized. The failure to pay the...
Source-derived case information.
- Citation
- [2020] KEELC 3226 (KLR)
- Parties
- Plaintiff: Ndovu Estates Limited; Defendant: Kaushal Kumar Mahendrabhai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 234 of 2017
- Procedural Posture
- Application to Set Aside Consent Order / Ruling on Application to Set Aside Consent Order
- Outcome
- Application to set aside consent order allowed.
- Judges
- MN Kullow
- Legal Topics
- Consent Orders, Land Transfer Conditions, Breach of Settlement Terms, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndovu Estates Limited
Plaintiff
Kaushal Kumar Mahendrabhai
Defendant
Procedural Posture
Application to Set Aside Consent Order / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order recorded on 12th October, 2017 should be set aside due to non-payment of the agreed sum by the plaintiff.
- 2 Whether failure to pay the agreed consideration within the stipulated period frustrates the consent and warrants its setting aside.
Ratio Decidendi
The court found that the consent order was expressly conditional upon the plaintiff paying Kshs. 1,550,000 within 30 days. Since the applicant (defendant) had not received the payment, which was a condition precedent to the transfer of the land, the consent order could not be actualized. The failure to pay the agreed sum frustrated the consent, and the applicant was entitled to have the consent set aside. The court therefore set aside the consent order and directed that the suit be set down for hearing.
Court Disposition
Application to set aside consent order allowed.
Orders
- The consent order dated 20/10/17 is set aside.
- The suit is to be set down for hearing.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAROK
ELC CAUSE NO. 234 OF 2017
FORMERLY NAKURU HCCC N0. 58 OF 2011
NDOVU ESTATES LIMITED.............................PLAINTIFF
-VERSUS-
KAUSHAL KUMAR MAHENDRABHAI.....DEFENDANT
RULING
By an Application dated 2nd May, 2019 the Applicant had sought for orders to set aside a consent order recorded in court on 12th October, 2017. The Application is based on the grounds that the Plaintiff had failed to pay the agreed sum of kshs. 1,550,000 though he continued to enjoy and use the Defendant’s parcel of land Cis Mara/Olololunga/13522 and that pursuant to the above the Plaintiff had frustrated the said consent order by his refusal to pay and thus the same is no longer tenable. The application was further supported by the Affidavit of the plaintiff in which pursuant to the aforesaid consent order the Plaintiff has continued to enjoy the use of the suit parcel of land despite his inability to meet the terms of the consent order to pay the sum of kshs. 1,550,000 and he has not taken any steps to comply with the said order.
The Application was opposed by the Plaintiff/Respondent who had filed a replying affidavit who averred that the parties herein had recorded a consent which marked the suit as settled with a condition that the defendants were to sign transfer documents in favour of the plaintiff in respect of the suit land. He further stated that the consent entered was subject to various conditions chief among them being how the land would be transferred.
I have considered the application and the submissions filed by the parties. The circumstances under which a consent order can be set aside or varied is now well settled.
The party seeking the consent must satisfy that there was fraud, misrepresentation or collision or such other grounds that are contrary to the law and policy.
In the instant matter the consent between the parties was premised or was conditional precedent to the plaintiff paying the sum of kshs. 1,550,000 within 30 days of entering into the said consent.
It was expressly stated in the consent that was in record as follows: -
“That the Defendant would transfer land parcel No. Cis Mara/Olololunga/13522 upon receipt of payment of kshs. 1,550,000 the said payment was to be expressly effected through the defendant’s advocate within 30 days of the consent.”
The Respondent though accepting that indeed those were the terms of the consent contends that the applicant has failed to actualize the administrative details of how the transfer was to be effected and thus he withheld the consideration of kshs. 1,550,000 thus necessitating the instant application.
Having stated above I find that since the applicant had not received the sum of kshs. 1,550,000 which was the conditional precedent to the actualization of the transfer of the land then the application dated 2/5/2019 is merited and I accordingly set aside the consent dated 20/10/17 and order that the suit herein be set down for hearing.
DATED, SIGNED and DELIVERED in open court atNAROKon this 5TH day of MARCH, 2020
Mohammed Kullow
Judge
5/3/2020
In the presence of:-
CA:Chuma/Kimiriny
Parties and advocates absent
Mohammed Kullow
Judge
5/3/2020