[2015] KEELC 346 (KLR)
The court found that the consent order entered on 19 December 2014 was executed without the knowledge or authority of the 1st, 3rd, and 4th defendants, and without any resolution or meeting of Barkitabu Group Ranch authorizing such compromise. The 2nd defendant, Mr. Paul Muntet, acted without proper authority, and...
Source-derived case information.
- Citation
- [2015] KEELC 346 (KLR)
- Parties
- Plaintiff: Tilal Ole Kaura; Plaintiff: James Nairuko; Plaintiff: Tumpes Dapash; Plaintiff: Mbartam Group Ranch; Defendant: Barta Kaura; Defendant: Paul Muntet; Defendant: Daniel Sururu; Defendant: Barkitabu Group Ranch
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 478 of 2013
- Procedural Posture
- Application to Set Aside Consent / Ruling on Interlocutory Application
- Outcome
- Application to set aside consent allowed; consent and consequential orders set aside; suit to proceed.
- Judges
- MA Silau
- Legal Topics
- Consent Orders, Fraud in Land Transactions, Authority of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tilal Ole Kaura
Plaintiff
James Nairuko
Plaintiff
Tumpes Dapash
Plaintiff
Mbartam Group Ranch
Plaintiff
Barta Kaura
Defendant
Paul Muntet
Defendant
Daniel Sururu
Defendant
Barkitabu Group Ranch
Defendant
Procedural Posture
Application to Set Aside Consent / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the consent order entered on 19 December 2014 should be set aside for lack of authority and fraud.
- 2 Whether Mr. Paul Muntet had authority to compromise the suit on behalf of all defendants.
- 3 Whether the consent prejudiced the interests of Barkitabu Group Ranch without proper authorization.
Ratio Decidendi
The court found that the consent order entered on 19 December 2014 was executed without the knowledge or authority of the 1st, 3rd, and 4th defendants, and without any resolution or meeting of Barkitabu Group Ranch authorizing such compromise. The 2nd defendant, Mr. Paul Muntet, acted without proper authority, and the plaintiffs' counsel entered into the consent despite the defendants having counsel on record. The court held that the consent was fraudulent, null, and void, and could not be allowed to stand. The application to set aside the consent was therefore allowed, and the suit was ordered to proceed as if the consent had never been filed.
Court Disposition
Application to set aside consent allowed; consent and consequential orders set aside; suit to proceed.
Orders
- The consent order dated 19 December 2014 and all consequential orders are set aside.
- The suit shall proceed as if no such consent was ever filed.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO. 478 OF 2013
TILAL OLE KAURA ……….....…………………1ST PLAINTIFF
JAMES NAIRUKO …………..…………………2ND PLAINTIFF
TUMPES DAPASH ………….………………….3RD PLAINTIFF
MBARTAM GROUP RANCH ……...…………..4TH PLAINTIFF
VERSUS
BARTA KAURA …..………………………….1ST DEFENDANT
PAUL MUNTET……………………………….2ND DEFENDANT
DANIEL SURURU…………………………….3RD DEFENDANT
BARKITABU GROUP RANCH ……….......…..4TH DEFENDANT
RULING
(Application to set aside a consent; suit by plaintiffs claiming land; counterclaim by defendants for the same land; consent compromising suit entered by counsel for plaintiffs and one defendant; no consultation with other defendants; consent clearly a fraud and is set aside)
1. The application before me is that dated 17 February 2015 filed by the 1st, 2nd and 4th defendants. The application seeks to have set aside a consent recorded on 19 December 2014 between the counsel for the plaintiffs and the 3rd defendant. The application is based on the ground that the consent was entered into without any involvement or consultation with the 1st, 3rd and 4th defendants and therefore ought to be set aside.
2. I find it necessary to set the background leading to this application.
3. This suit was commenced by way of plaint filed on 24 July 2013 through the law firm of M/s Ochego Onduso & Company Advocates. The case as filed is that the defendants who are chairman, secretary and treasurer of the 4th defendant, Barkitabu Group Ranch, have interfered with the land parcel Narok Cis-Mara/Siana 'A'/129, which is said to belong to the plaintiffs through the Mbartan Group Ranch (4th plaintiff). In the suit, the plaintiffs want a declaration that the suit property belongs to Mbartan Group Ranch.
4. The defendants entered appearance through the law firm of M/s Lel & Associates Advocates. They filed a statement of defence in which they pleaded that the plaintiffs obtained title to the suit property unlawfully. They also filed a counterclaim in which they asked for a declaration that the suit property belongs to the defendants and for cancellation of the title issued to the plaintiffs.
5. As the case was pending, a written consent was filed on 16 December 2014. The consent was to the effect that the plaintiffs and the 2nd and 4th defendants have agreed to an out of court settlement, that Mbartan Group Ranch are the sole owners of the suit property and that the suit is therefore withdrawn entirely. The consent was executed by James Ochego Onduso, counsel for the plaintiffs and Paul Muntet, the 2nd defendant who signed the consent as Secretary of Barkitabu Group Ranch.
6. In this application, it is averred that the consent order was secretly and fraudulently recorded as the 1st, 3rd and 4th defendants were never involved. The supporting affidavit sworn by Bartan Kaura, the 1st defendant, is that the officials of Barkitabu Group Ranch have never held a meeting or passed any resolution conceding to the plaintiffs' suit and neither did they authorize Mr. Paul Muntet to record any consent. It is also pointed out that the defendants have counsel on record who was never informed about the consent.
7. At the hearing of the application, Mr. Ndubi, holding brief for Mr. Ochego Onduso for the plaintiffs, conceded to the application.
8. I on my part am satisfied that the consent must be set aside. It is clear that Mr. Muntet did not have any authority to compromise the suit to the detriment of the principal defendant which is Barkitabu Group Ranch. It is also beyond me how Mr. James Ochego Onduso, an advocate who should have known better, agreed to enter into a consent with Mr. Muntet, in person, while the defendants had counsel on record. The consent is a clear fraud and cannot be allowed to stand. It is null and void. Given the concession by the plaintiffs, I find it unnecessary to say more.
9. The consent together with all consequential orders are hereby set aside. The suit is to proceed as if no such consent was ever filed.
10. The applicants shall have the costs of this application jointly as against the plaintiffs and Mr. Paul Muntet.
11. It is hereby ordered.
Dated, signed and delivered in open court at Nakuru this 17th day of June 2015.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT AT NAKURU
In presence of : -
Mrs Oliech holding brief for Mr Onduso for plaintiffs/respondents.
Mr Kilele present for defendants/applicants.
CA: Janet
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT AT NAKURU