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ELCDismissedNot stated in judgment

Cross Country Ventures Limited v Nairobi City County (Environment & Land Case 86 of 2018) [2025] KEELC 4099 (KLR)

Environment and Land Court
22 May 2025
COChristine Ochieng
1,743 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Nairobi's Environment and Land Court refused to undo a land settlement agreement, ruling that a party cannot escape a consent decree without proving fraud or collusion.

What this practically means

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Executive summary

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The Defendant's Notice of Motion dated 18th February 2025 sought review and setting aside of a consent decree dated 26th April 2024, pursuant to a consent recorded on 16th February 2024 and adopted as an order of court on 29th February 2024. The consent declared the Plaintiff the lawful owner of Land Parcel No. LR 209/5945, granted it exclusive possession and liberty to remove padlocks on the front gate, with each party bearing its own costs. Through its Acting County Solicitor, Wasonga Ogolla, the Defendant contended that its erstwhile advocates, Musyoki Mogaka & Company Advocates, acted without instructions and that the consent was fraudulent and would result in loss of ownership of the suit property. The Plaintiff opposed, asserting that an advocate of record has general authority to compromise a suit, that the advocates had obtained instructions and given a legal opinion advising settlement, and that the Defendant had admitted in its pleadings the Plaintiff's registered ownership and continued issuing rates demand notes. The court framed a single issue: whether the consent decree should be reviewed and/or set aside. Applying the settled principles in Board of Trustees NSSF v Michael Mwalo, Guzzini v Tinga and Patriotic Guards Ltd v Sambu, the court held that a consent judgment can be impeached only on grounds of fraud, collusion or an agreement contrary to public policy, and that a court does not inquire into counsel's instructions absent such vitiating factors. The court found no fraud or collusion demonstrated, noted the legal opinion advising settlement, and dismissed the application with costs.

Questions the Court framed

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

  1. 1.Whether the consent decree dated 26th April 2024 should be reviewed and/or set aside

Key legal issues

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01

Whether the consent decree dated 26th April 2024 should be reviewed and/or set aside on the ground of want of instructions/fraud

Holding

The application was dismissed; the Defendant failed to prove fraud, collusion or mistake in the entry of the consent, and the erstwhile advocates had advised settlement by legal opinion before the consent was recorded

Reasoning

The court applied the settled principles that a consent judgment may be impeached only on grounds justifying rescission of a contract, namely fraud, collusion or an agreement contrary to public policy. On the record, the parties and their advocates had agreed to resolve the matter amicably, the erstwhile advocates had issued a legal opinion recommending settlement, and the deponent did not demonstrate fraud or collusion. The Defendant's witness statement also admitted the Plaintiff's ownership of the suit land.

p. 4

Legal principles established

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  • A court will not interfere with a consent judgment except in circumstances such as would provide good ground for varying or rescinding a contract; it must be shown the consent was obtained by fraud, collusion or an agreement contrary to the policy of the court
  • A court is not obligated to inquire into the terms on which counsel is instructed; absent fraud, mistake or misrepresentation, consent orders stand

Court orders

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  1. 1.The Notice of Motion application dated 18th February 2025 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff

The bench

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

CO
majority

Wrote the judgment

Jurisdiction invoked
Inherent review and setting-aside jurisdiction over consent decrees under civil procedure; the judgment does not cite a specific constitutional or statutory provision

Relief refused

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Review and setting aside of the consent decree dated 26th April 2024 and all subsequent orders

The Defendant failed to demonstrate fraud, collusion, mistake or an agreement contrary to public policy in the entry of the consent

p. 4

Costs

Application dismissed with costs to the Plaintiff

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.

I hence find that there is no plausible reason proffered to warrant the review and or setting aside of the impugned Decree dated the 26th April 2024.
p. 4Refusal to set aside consent decree
I find the Notice of Motion application dated the 18th February 2025 unmerited and will proceed to dismiss it with costs.
p. 4Final orders - dismissal with costs
To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of Court.
p. 3Principles for setting aside consent judgments
In the absence of fraud, mistake or misrepresentation, such orders stand
p. 3Sanctity of consent orders and counsel's authority

Issues in the judgment

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minor

Counsel's appearance is recorded inconsistently - Kimani is listed for 'Plaintiff/Respondent' and Ms Anjiko for 'Respondent/Appellant' although the matter is a first-instance application, and the 'Respondent/Appellant' designation is contradictory

minor

The judgment refers to the consent as dated both 8th February 2024 and 16th February 2024

minor

The Defendant's deponent is described as Acting County Solicitor and the witness as Cecilia W. Kiogu but later as Cecilia W. Koigu - inconsistent spelling

minor

The parties' full names are not stated in the judgment text, which commences directly at the application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cross Country Ventures Limited v Nairobi City County (Environment & Land Case 86 of 2018) [2025] KEELC 4099 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4099/eng@2025-05-22

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