Samuel Njogu Kamotho & 43 others v Kenya African National Union (KANU) [2021] KEELC 3228 (KLR)
The bottom line
#A Kenyan court refused to undo a land settlement that the parties' own lawyer had agreed to in court, confirming that consent orders bind like contracts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the consent orders recorded on 17th December 2020 can be set aside, varied, vacated or reviewed
- 2.Whether the plaintiffs' former advocate, Mr Ndubi, acted without or in excess of instructions
- 3.Whether the consent was contrary to public policy
- 4.Whether the plaintiffs should be granted leave to amend the plaint
Key legal issues
#Whether a consent order recorded by counsel can be set aside on the ground of lack of consultation
No. Counsel who filed the suit and prosecuted it had authority to record the consent, binding the clients; allegations of exceeded instructions made in the advocate's absence and without his affidavit are invalid
The court found the plaintiffs validly instituted and prosecuted the suit through Mr Ndubi, who personally attended court and recorded the consent with the same authority he had to draft and file pleadings. Allegations that he exceeded instructions were made in his absence and unsupported by any affidavit from him, and cannot ground setting aside a consent order.
Whether hardship, pandemic-related suffering, and an intention to purchase the property justify setting aside the consent
No. Parties must face the consequences of a contract freely entered into; such considerations are neither here nor there and the consent is not against public policy
The court held that claims of hardship from eviction and the ambition to pool resources over three years to buy the suit property cannot invalidate a freely entered contract. The court has no power to compel the defendant to sell to the plaintiffs, and the consent was not contrary to public policy.
Whether leave to amend the plaint can be granted after the matter was marked settled
No, amendment is impossible in a concluded case and no draft amended plaint was exhibited
The matter had been marked settled on the consent terms, so it was concluded. The plaintiffs also failed to exhibit a draft amended plaint, indicating the application for amendment was an afterthought designed to keep the litigation alive rather than a genuine prayer.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
- An order made in the presence and with the consent of counsel is binding and cannot be varied or discharged unless obtained by fraud, collusion, agreement contrary to the policy of the court, or without sufficient material facts
Court orders
#- 1.Notice of Motion dated 31st March 2021 dismissed with costs to the defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil suit; inherent powers to review/set aside consent orders under civil procedure
Relief refused
#Setting aside, variation, vacatur or review of the consent orders of 17th December 2020
No collusion, misrepresentation, fraud or other ground justifying setting aside a consent order was established; the advocate had authority and bound the plaintiffs
Leave to amend the plaint
A plaint cannot be amended in a concluded case; no draft amended plaint exhibited; the suggestion was an afterthought
Costs
Application dismissed with costs to the defendant
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find no merit in Notice of Motion dated 31st March 2021. The application is dismissed with costs to the defendant.
It is now settled law that a consent judgment or order has contractual effect and can only be set side on grounds which would justify setting a contract aside
The plaintiffs have not established any collusion, misrepresentation or any reason which would warrant setting aside the contract comprised in the consent.
One cannot amend the plaint in a concluded case.
Issues in the judgment
#The application as reproduced refers to vacating the suit property 'on or before 30th March 2020', which conflicts with the consent recorded on 17th December 2020 requiring vacation on or before 30th March 2021; the earlier date appears to be a typographical error
The decision is described as a ruling on a Notice of Motion, and no case number for the suit appears anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Njogu Kamotho & 43 others v Kenya African National Union (KANU) [2021] KEELC 3228 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3228/eng@2021-05-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.