Automated Summary
Key Facts
The court set aside a consent judgment dated 2 October 2023 in Gichaga v Kabangi & 2 others (Environment & Land Case E001 of 2023) after determining it was not entered into by all parties to the dispute. The 2nd Defendant claimed improper service of summons and pleadings, with allegations that the 1st Defendant had died before the suit was filed. The court found that the consent judgment disadvantaged the 2nd Defendant by not allowing a full trial, and noted the 2nd Defendant's defense raises triable issues requiring merit-based resolution. The case was ordered for rehearing with a mention fixed for 16 May 2025.
Issues
- The court considered if the failure to serve the 2nd Defendant before the consent judgment was entered violated the principle of audi alteram partem (right to be heard), as highlighted in Patrick Omondi Opiyo v Shaban Keah. This included assessing whether the lack of service and subsequent consent deprived the 2nd Defendant of a fair opportunity to present its case.
- The court evaluated if the 2nd Defendant's attached draft defense contained triable issues that necessitated a full trial rather than proceeding based on the consent judgment. This included reviewing whether disputed facts existed that could affect the outcome, as established in County Government of Trans Nzoia v Manaseh Distributors.
- The court determined whether the Applicant met the threshold to set aside the consent judgment and decree issued on 2/10/23, given that the 2nd Defendant allegedly was not properly served with summons or pleadings, and the consent was entered into by only two parties (Plaintiff and 3rd Defendant). Legal principles from cases like Samson Munikah v Wedube Estates and Patel v E.A. Cargo Handling were referenced to assess if the judgment was obtained by fraud, collusion, or procedural unfairness.
Holdings
- The case is to be heard on its merits following the setting aside of the previous consent judgment.
- The court allows the firm of Messrs Musa Nyariki & Co. Advocates to act for the 2nd Defendant in the suit.
- The consent judgment and related orders dated 2 October 2023 against the 2nd Defendant are set aside due to alleged improper service and lack of full participation.
- The matter is fixed for mention before the Deputy Registrar ELC Kwale for initial pretrial directions on 16 May 2025.
- The costs of the application will depend on the outcome of the main suit.
- The 2nd Defendant's draft statement of defense is deemed filed upon payment of court fees.
- Leave to appeal this ruling is granted if required by the parties.
Remedies
- The court deemed the 2nd Defendant's Draft Statement of Defence as duly filed, effective from the date of payment of the requisite court fees.
- The court fixed the matter for mention before the Deputy Registrar ELC Kwale for initial pretrial directions on 16th May 2025.
- The court set aside the Consent recorded on 2nd October 2023, along with the proceedings, subsequent orders, and the decree granted against the 2nd Defendant/Applicant.
- The court ordered that the costs of the application shall be determined based on the outcome of the main suit.
- The court directed that the case be heard on the merits, ensuring a fair trial without prior decrees affecting the outcome.
- The court permitted the firm of Messrs Musa Nyariki & Co. Advocates to come on record and represent the 2nd Defendant/Applicant in the suit.
- The court granted leave to appeal this ruling, allowing parties to seek further review if necessary.
Legal Principles
The court applied principles of natural justice, specifically the audi alteram partem rule, to set aside the consent judgment. It emphasized that no litigant should be condemned unheard and that service of summons is essential to accord parties the opportunity to be heard before orders are issued against them.
Precedent Name
- Broke Bond Liebig (T) Ltd v Mallya
- Patrick Omondi Opiyo T/A Dallas Pub v Shaban Keah & Another
- Kenya Trade Combine Ltd v Shah
- Samson Munikah v Wedube Estates Limited
- Board of Trustees National Social Security Fund v Micheal Mwalo
- Hirani V Kassan
- Patel v E.A. Cargo Handling Services Limited
- County Government of Trans Nzoia v Manaseh Distributors & Wholesalers Limited
Cited Statute
- Civil Procedure Act
- Civil Procedure Rules
Judge Name
A.E. Dena
Passage Text
- The issue that commends determination is Whether the Applicant has met the threshold for reviewing or setting aside the consent judgement and consequential decree entered by the court on 2/10/23.
- On the basis of the above I would set aside the consent judgement and add that it would be against court policy for the Attorney General to have participated in the consent in the manner above explained.
- Service of summons accords the sued party the opportunity to be heard before any orders are issued against him/her. That is the essence of the rules of natural justice which all legal systems applaud.