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ELCDismissedMKS. ELC. CASE NO. 181 OF 2012

Mulani v Mulani; Safaricom Investment Co-operative Society Limited (Interested Party) (Environment & Land Case 181 of 2012) [2024] KEELC 4001 (KLR)

Environment and Land Court
21 May 2024
COChristine Ochieng
2,737 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Machakos Environment and Land Court refused to undo a 2022 order, holding that a party who consents to another joining a case cannot later object to that party participating.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on the Plaintiff's Notice of Motion dated 5th September 2023. The Plaintiff sought a stay of proceedings, setting aside of the proceedings and orders of 23rd June 2022, and reservation of a judgment date. Her complaint was that although the Interested Party's application for joinder was unopposed and limited to joinder, the court on 23rd June 2022 granted, of its own motion, leave for the Interested Party to file its defence and documents, and the matter had since proceeded to pretrial directions. The Defendant and the Interested Party opposed, arguing the orders flowed from a consent on joinder and that the court acted within its inherent powers under sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act. The court framed a single issue: whether the orders of 23rd June 2022 should be set aside in their entirety. Applying the principles that a consent order has contractual effect and can only be set aside on grounds justifying setting aside a contract (Flora Wasike v Destimo Wamboko; Brooke Bond Liebig v Mallya), and that courts possess residual inherent jurisdiction exercisable suo motu to further the overriding objective, the court held that by consenting to the joinder the plaintiff impliedly accepted the Interested Party would file pleadings. The plaintiff had also acquiesced, filing a reply to the defence before challenging the orders. The application was dismissed with costs in the cause.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the court should set aside the orders issued on 23rd June, 2022 in its entirety

Key legal issues

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01

Whether the court should set aside the orders of 23rd June 2022 including suo motu leave granted to the Interested Party to file pleadings

Holding

Application dismissed; the orders of 23rd June 2022 were properly made and the plaintiff failed to demonstrate grounds for review

Reasoning

The plaintiff consented to the joinder of the Interested Party, whose grounds for joinder showed it claimed to be an innocent purchaser for value of the suit land. Once joined by consent, the Interested Party could properly file pleadings. The court's suo motu grant of leave was a valid exercise of inherent power under sections 3A and 1A/1B. The plaintiff did not immediately object, instead filing a reply and participating in pretrial directions, which undermined her challenge. No ground for review under section 80/Order 45 was established.

p. 5

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • A court may exercise its inherent powers suo motu, even in circumstances governed by rules of court, to further the overriding objective

Court orders

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  1. 1.Application dismissed
  2. 2.Costs in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

CO
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 45 and Order 51 of the Civil Procedure Rules

Relief refused

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Stay of proceedings and pretrial directions

Prayer overtaken by events and application found unmerited

Setting aside of proceedings and orders of 23rd June 2022

No grounds for review/setting aside proved; consent order has contractual effect

p. 5

Reservation of a judgment date

Dependent on setting aside, which was refused

Costs

Costs will be in the cause.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the foregoing, I find the instant Application unmerited and will dismiss it.
p. 5Disposition - dismissal of the application
Costs will be in the cause.
p. 5Costs order
this Court has inherent powers that it can invoke suo motu in relation to matters not raised in litigation between the parties, even in circumstances governed by rules of court.
p. 5Inherent jurisdiction exercised suo motu
by accepting the Interested Party to join the proceedings by consent, it then implied that the Interested Party is expected to file pleadings or documents whether it sought to do so, expressly or not.
p. 5Effect of consenting to joinder

Issues in the judgment

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minor

The coram lists 'Munyao for Applicant' and 'Ochieng for Interested Party holding brief for Njego for Respondent', though the defendant's supporting affidavit is sworn by Tabitha Nduku Mulani; the judgment refers to the defendant throughout as Defendant while the appearance list labels the Respondent - internally consistent enough but noted

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mulani v Mulani; Safaricom Investment Co-operative Society Limited (Interested Party) (Environment & Land Case 181 of 2012) [2024] KEELC 4001 (KLR)", Case Analysis (2024). MKS. ELC. CASE NO. 181 OF 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4001/eng@2024-05-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.