[2016] KEELC 315 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

HCC 67 OF 2008

PRESBYTERIAN FOUNDATION .………...………..PLAINTIFF

VERSUS

CHARLES NDUNGU ……………………….…….DEFENDANT

AND

MARGARET WANJIKU WARIUKI

GRACE WAHITO NGARI

OBADIAH KAIRU MAINA

(Suing as officials being Session Clerk, Session Treasurer and Finance Chairman respectively of P.C.E.A DR. ARTHUR

PARISH………………………………..…INTERESTED PARTY

RULING

(Application to set aside a consent; principles to be applied; applicant being interested party to suit and not party to the consent; whether a person not party to a consent can apply to set the consent aside; section 80 Civil Procedure Act wide enough to accommodate any person; land seemingly having been purchased by interested party but registered in name of plaintiff; relationship similar to principal agent or trustee/beneficiary; interested party could be put in shoes of a principal; no authority given to enter into the consent; application allowed; consent set aside).

1. The application before me is that dated 10 December 2013 filed by the interested party. It seeks the following orders :-

(i) spent

(ii) That this Honourable Court be pleased to set aside the consent judgment entered into between the plaintiff and the defendant herein in its totality.

(iii) That in the alternative this Honourable Court be pleased to review and set aside or vacate the consent judgment and decree entered into between the plaintiff and the defendant herein in its totality.

(iv) That this Honourable Court be pleased in consequence to direct and order that the interested party be allowed to file any pleadings or papers or affidavits and that the matter do proceed to full hearing.

(v) That the defendant and plaintiff do bear costs of this application.

2. There are various grounds set out in support of the application and the application is opposed by the defendant. Before I go to these, I think it is important that I lay down the background culminating to this application.

3. This suit was filed on 28 April 2008 by way of plaint. In the plaint, the plaintiff claimed to have purchased the land parcel L.R No. 14242/2 measuring about 18. 82 Ha in a public auction that was held on 11 March 2005. It is pleaded that about the same year, the defendant unlawfully entered into the said land and took possession of 7 acres of it. In the suit, the plaintiff sought orders inter alia for a declaration that it is the proper owner of the suit property and an order of vacant possession and/or eviction. The defendant filed defence and counterclaim. He averred that the land was jointly purchased by himself and the plaintiff and that he made contribution entitling him to 7 acres of the suit land. He contended that the plaintiff therefore holds 7 acres of the suit property in trust for him and sought a declaration to that effect.

4. On 29 March 2011, the plaintiff’s and defendant's counsels entered into the following consent.

(i) That the defendant herein is entitled to 5 acres of L.R No. 14242/2 and the plaintiff herein shall subdivide and transfer the said 5 acres to the defendant herein.

(ii) That each party herein shall bear its own costs of this suit.

5. Clearly not being too happy with the said consent, the Dr. Arthur PCEA parish, applied to be enjoined to these proceedings as interested party. In the application, it was argued that the Dr. Arthur PCEA Parish is the party which purchased the suit property and that the plaintiff, the Presbyterian Foundation, was only holding the property in trust for her. It was contended that the matter has proceeded without the full involvement of the interested party and certain compromising orders made. The Parish thus felt that they were necessary parties to these proceedings.

6. The application was heard and in a ruling delivered on 2 December 2013, my predecessor, Waithaka J, allowed the application hence the Dr. Arthur PCEA Parish became enjoined as interested party. It is that Parish which is the applicant in the present application.

7. In this application, the interested party has repeated the assertion that it is the true and/or equitable owner of the suit land and that the plaintiff only holds the title in trust for her. It is stated that the interested party never gave the plaintiff the authority to record the consent judgment and that the plaintiff acted outside its mandate as trustee. It is alleged that the consent was procured by way of fraud. In the supporting affidavit sworn by Margaret Wanjiru Wariuki, it is deposed that the interested party purchased the property with the aim of setting up an education institution. It is averred that it was never the intention of the interested party to subdivide the land amongst its members and that if the plaintiff had consulted the interested party, the consent would not have been entered into. It is claimed that when the interested party bidded for the property, the defendant's wife was an official of the Parish. It is contended that the defendant's wife acted inappropriately in receiving money from the defendant so as to give him a portion of the land. It is deposed that when the interested party came to learn about what transpired between the defendant and his wife, they resolved to refund the defendant his money which was done. It is their view that the defendant should not benefit from clear acts of fraud.

8. The defendant in opposing the motion filed a replying affidavit. He inter alia deposed that this was a joint purchase between himself and the Dr. Arthur PCEA Parish. He has deposed that in December 2007, the Parish purported to deposit the sum of Kshs 340,000/= into his account but he re-deposited it back into the church account. He has also contested the authority of the interested parties filing this application as it is contended that it has been filed without authority. He has stated that the matter between himself and the plaintiff was resolved after a Committee meeting sat and determined that he be given 5 acres of land and this is what led to the consent being recorded. It is asserted that during this period of negotiations, the interested party was involved. He has deposed that the interested party falls under the jurisdiction of the Nakuru Presbytery and that the plaintiff has the legal authority to represent the interested party and cannot take any legal step without the consent of the interested party. It is stated that it is only the plaintiff which is entitled to hold land within the PCEA fraternity and that the interested party has no mandate to deal with land and cannot address any issue on property owned by the Church.

9. A supplementary affidavit was filed wherein the interested party asserted inter alia that there has been proper authority granted before the application was filed.

10. I invited counsels to file written submissions and they did. I have gone through the same and also taken note of the oral submissions of Mr. Matiri for the applicant and Mr. Waiganjo for the defendant. The plaintiff did not participate in this application at all. In his submissions Mr. Matiri elaborated the instances when a consent may be set aside and also argued that the interested party is entitled to file this application under the provisions of Section 80 of the Civil Procedure Act. He was of the view that the consent was procured by way of fraud or collusion or mistake and ought to be set aside. He submitted that the consent was entered into in breach of trust. Mr. Waiganjo on the other hand submitted inter alia that the applicant is not a party to the consent in issue and only a party to a consent can seek to set it aside. He submitted that a consent is akin to a contract and given it contractual nature, only a party privy to the consent can set it aside. He further submitted that setting aside the consent will serve no purpose since the suit land legally belongs to the plaintiff. On the provisions of Section 80 of the Civil Procedure Act, counsel submitted that the interested party is not a legal person and cannot therefore file an application under Section 80. He refuted any allegations of fraud collusion or mistake.

11. Both counsels relied on various authorities which I have considered.

12. Before I go very far, I first need to determine whether the interested party can properly present this application since it was not a party to the consent. There was an issue raised as to its capacity but I see no problem on this, as it has sued through persons who have legal personality. I was directed at Section 80 of the Civil Procedure Act, which provides as follows :-

80. Review

Any person who considers himself aggrieved—

(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.

13. It was of course argued by Mr. Waiganjo that since a consent is similar to a contract, only the parties to the consent can apply to set it aside. None of the counsels tendered any direct authority which addresses the point whether a person who is not a party to a consent can apply to have the same set aside.

14. On my part I do not think a party who is not a party to a consent cannot apply to have it set aside. I am of the view that the provisions of Section 80 of the Civil Procedure Act, are wide enough to accommodate such an applicant. It will be observed that Section 80 allows any person aggrieved by a decree or order to apply for a review of the said judgment. A consent culminates in either a judgment or order of the court. Once it becomes an order or judgment of the court, then it brings itself within the bracket of the Section 80 of the Civil Procedure Act. I agree, that a consent is similar to a contract, but even then, it cannot be said that nobody, save for the parties to a contract can apply for the cancellation of such contract, or can be sued or seek rights under such contract. Following the principles of principal/agent, a principal can be sued under a contract even where such principal was not the actual party to an agreement which was entered into by his agent.

15. On the above reasons, I am of the view that the interested party is entitled to make the present application even though it was never a party to the consent.

16. On the substance of the application, counsels have properly addressed me on the circumstances vide which a consent may be set aside. There is consensus that a consent can only be set aside on the same grounds that would justify the setting aside of a contract. This is now trite law addressed in cases such as Brooke Bond Liebig v Mallya (1975) EA 266, Kenya Commercial Bank Ltd vs Specialized Engineering Company Ltd (1979) KLR 485 and Flora N. Wasike vs Destimo Wamboko (1988) 1 KAR 625.

17. It is the argument of the applicant that the consent is a fraud entered into by collusion. In the alternative it is argued that it was a mistake. It is contended that the interested party ought first to have been consulted before the consent was entered into since the plaintiff is only a trustee of the property. This has been refuted by the respondent as I have pointed out above.

18. On my part, I do not think there was any fraud or collusion. I think the consent was entered into in good faith with the aim of settling the matter. But I think the interested party has raised an important issue, which is , that it is not agreeable to the consent and that it ought first to have been informed of the consent and given its go ahead before the same could be entered into. I have seen material which seems to suggest that the land was actually being purchased by the Dr. Arthur PCEA Parish. The defendant himself in his reply stated that he purchased the property together with the Dr. Arthur PCEA Parish. It appears there is consensus that the actual purchase of the land was done by Dr. Arthur PCEA Parish and not the plaintiff. I do not know how come the land ended up being registered in the name of the plaintiff. Probably the two parties have their own internal arrangements which I am not currently privy to. It was said that the plaintiff holds all land for the Presbyterian Church but I was not shown any document to support this and I cannot conclusively say that this is the position. What is clear is that the plaintiff, the Presbyterian Foundation, did not make any payment and is not the entity which purchased the land at the auction. Without making any conclusive finding, it seems to me as if there is a relationship between the two parties, almost similar to that of principal/agent or trustee/beneficiary. There are circumstances when a principal can apply to set aside contracts entered into by his agent, or where the principal is not bound by the acts of his agent. This is especially so where the agent had no authority to enter into the contract and the principal did not hold out such agent as having authority.

19. In our case, I am of the view that the Dr. Arthur PCEA Parish, being in the shoes of principal or beneficiary, did not authorize the plaintiff to enter into the consent. That would be a reason for the setting aside of a contract and to me it is good reason to set aside the consent herein. For that reason, I am inclined to allow this application. I do hereby set aside the consent entered into by the parties.

20. The applicant has also applied to have an order that it be allowed to file pleadings in this case. I have no problem giving this order since it appears to me as if there is a disconnect between the plaintiff and the interested party. The interested party is at liberty to file any statement of claim that it may wish to file and I will give directions as to the hearing of such claim once filed.

21. On costs, I think it is best that each party bears his/her own costs.

22. It is so ordered.

Dated, signed and delivered in open court at Nakuru this 19th day of October 2016.

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU

In presence of :-

Ms. Ndungu for the interested party/applicant

Ms. Wangari for the defendant/respondent

No appearance on the part of M/s Waruhiu K’Owade & Ng’ang’a for the plaintiff/respondent

Court Assistant: Janet

MUNYAO SILA

JUDGE

ENVIRONMENT & LAND COURT

AT NAKURU