[2012] KEHC 1885 (KLR)
The court found that the consent order was duly entered into by the parties through their respective advocates, with no evidence of misrepresentation, fraud, or lack of authority. The negotiations and parameters were clearly defined prior to the consent, and the subsequent actions, including the subdivision of land...
Source-derived case information.
- Citation
- [2012] KEHC 1885 (KLR)
- Parties
- Plaintiff: Sienya Oluoch; Defendant: Julius Ochola Ojunga
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 123 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application to Set Aside Consent Order
- Outcome
- application dismissed with costs
- Judges
- HK Chemitei
- Legal Topics
- Consent Orders, Review of Judgments, Land Apportionment, Survey Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sienya Oluoch
Plaintiff
Julius Ochola Ojunga
Defendant
Procedural Posture
Civil Suit / Ruling on Application to Set Aside Consent Order
Legal Issues
- 1 Whether the consent order entered on 12th June 2008 should be set aside.
- 2 Whether there was misrepresentation or lack of authority by the plaintiff's counsel in entering the consent.
- 3 Whether the application to set aside the consent is frivolous, vexatious, or an abuse of process.
Ratio Decidendi
The court found that the consent order was duly entered into by the parties through their respective advocates, with no evidence of misrepresentation, fraud, or lack of authority. The negotiations and parameters were clearly defined prior to the consent, and the subsequent actions, including the subdivision of land and issuance of titles, were carried out without objection. The applicant's delay of over three years in challenging the consent was deemed excessive and indicative of an afterthought. The court concluded that there was no legal basis to set aside the consent order, and that the application was an abuse of process, especially given the prior unsuccessful attempt to set aside...
Court Disposition
application dismissed with costs
Orders
- The application dated 21st April 2011 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
Civil Suit 123 of 2006
SIENYA OLUOCH........................................................................PLAINTIFF
VERSUS
JULIUS OCHOLA OJUNGA...................................................DEFENDANT
RULING
On 12th June 2008 the parties entered into the following consent:-
(a)Original Land Parcel number Kisumu / Nyalunya / 222 be resurveyed by the Kisumu District Land Surveyor and the Kisumu District Land Registrar with a view to apportioning the same into two (2) equal parts.
(b)The plaintiff to take the upper portion and the defendant taking the lower portion.
(c ) Both the plaintiff and the defendant to share costs of resurvey.
(d)The District (Kisumu) Surveyor to file his report within sixty (60) days from the date of service of this order.
(e)Matter stood over generally.
The above exercise was undertaken and title number Kisumu/Nyalunya / 3477 and 3478 were issued.
The plaintiff has filed the notice of motion dated 21st April 2011 seeking the review of the said consent with a view of setting the same aside as well as the resultant consequences.
The substances of his affidavit sworn on 21st April 2011 is that he did not give clear instruction to his counsel Mr. D. O. E Anyul. Accordingly to him the suit property consisted of other parties who have been aggrieved by the results of the said consent.
The plaintiff has opposed the application by way of a replying affidavit sworn on 30th August 2011. According to the plaintiff the application is frivolous and vexatious as the applicant had sought similar orders which were dismissed by this court on 3rd December 2010.
I have perused the said application as well as the supporting and opposing rival affidavits. What is not in dispute is that the consent was duly entered by the parties through their counsels.
The letter dated 10th June 2008 (annexture SA 1) of the plaintiff affidavit shows the communication between the firm of D. E. O. Anyul & Co Advocates and M/s Mwamu & Co Advocates in regard to the apportionment of the suit land.
From my observation therefore I do not see any iota of misrepresentation by the firm of Anyul & Co Advocates.
The parameters of the negotiations seemed to have been defined way before entering the consent.
The celebrated case of Flora N. Wasike =vs= Destine Waboko (1982-88) 1KLR 25 clearly states the circumstances when to set aside the consent order.
Further in Purcel =vs= F. C. Trigell Ltd (1970) 2 ALL ER 671 Winn J said:-
….......If a consent order is to be set aside it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons and I see no suggestion here that any matter that occurred would justify the setting aside of rectification of this order looked at as a contract”.
I am unable too to see any basis of setting the said consent aside. I am unable to know from the pleadings what Mr. Anyul was not supposed to do or do for his client.
In any event the parties executed the consent without any objection. The surveyor moved to the land and sub-divided without any objection from the defendant or other interested parties. Titles were issued and I suppose he collected his.
All these activities took place from 18th June 2008. The application in my mind is belated and an afterthought. There is always need to take into consideration the steps and the period taken by the aggrieved party in circumstances where a consent has been entered and one want to challenge. The period of over three years is manifestly excessive.
I have noted also that the applicant attempted to set aside the said order vide his application dated 30th June 2009 but the same was dismissed.This application is in my mind an attempt to seek a second chance by the applicant. I shall not allow it. The same is dismissed with costs.
Dated, signed and delivered at Kisumu this 15th day of October 2012
H. K. CHEMITEI
JUDGE
In the presence of:
Otieno for Mwamu Advocate for the Plaintiff
Omondi for Anyul Advocate for the defendant
HKC/aao