Waweru v Seke & 3 others; Mundia & others (Interested Party) (Environment & Land Case 91 of 2011) [2025] KEELC 3452 (KLR)
The bottom line
#Kenya's Environment and Land Court in Machakos set aside a consent judgment entered without two defendants' participation, confirming every party has a right to be heard.
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 PO met the legal threshold and whether its grounds are merited
- 2.Whether the consent judgment should be set aside
- 3.What orders should be issued, including an order as to costs
Key legal issues
#Whether the preliminary objection met the Mukisa Biscuit threshold
The PO failed as it raised contested factual matters requiring evidence
The PO asserted that the 3rd defendant's counsel was present at the hearing, a factual dispute between the parties. Resolving it would require an assessment of pleadings and evidence. Since a PO must be a pure point of law on assumed facts, the objection did not meet the legal threshold and was dismissed.
Whether the consent judgment of 27/4/2022 should be set aside
Yes; it was entered without the knowledge, participation or presence of the 3rd and 4th defendants and was a nullity
Relying on Kanyiita Nderitu, Wasike and Waiguru, the court held consents may be set aside for mistake or lack of participation. The court record showed only the plaintiff's counsel, 1st and 2nd defendants' counsel and IPs' counsel present on 27/4/2022. The consent was therefore unprocedural, irregular and unlawful, and violated the 3rd and 4th defendants' right to a fair hearing.
Legal principles established
#- A preliminary objection must be on a pure point of law, assuming the facts pleaded by the other side
- A consent judgment can only be set aside on grounds that would justify setting aside a contract, such as fraud, mistake or misrepresentation
- A consent entered without a party's or its counsel's participation is a nullity ab initio
- Parties to proceedings have a right to be heard before adverse orders are made against them
Court orders
#- 1.The notice of preliminary objection dated 7/12/2023 is hereby dismissed
- 2.That consent judgment entered on 27/4/2022 and all consequential orders that ensued therefrom, including the decree, are hereby set aside
- 3.Since the matter is part heard, further directions shall be made on the hearing of this matter
- 4.Costs shall abide by the outcome of the main suit
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 25 Rule 5 of the Civil Procedure Rules (power to adopt consents and record consent judgments)
Relief refused
#Plaintiff's preliminary objection dated 7/12/2023
Its grounds raised contested matters of fact requiring evidence, not pure points of law
Costs
Costs shall abide by the outcome of the main suit
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.
The notice of preliminary objection dated 7/12/2023 is hereby dismissed.
That consent judgment entered on 27/4/2022 and all consequential orders that ensued therefrom, including the decree, are hereby set aside.
Costs shall abide by the outcome of the main suit.
if a party and or its counsel did not participate in the consent, then such consent is a nullity ab initio and should not see the light of day.
A PO must be on a point of law, and it is premised on the assumption that all the facts pleaded by the other side are correct.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Waweru v Seke & 3 others; Mundia & others (Interested Party) (Environment & Land Case 91 of 2011) [2025] KEELC 3452 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3452/eng@2025-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.