Idris Ahmed Essa v Mukambi Safari Lodge and Ors (2024/HP/0814) [2026] ZMHC 2 (7 January 2026)

Rl 2024/HP/0814 IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: IDRIS AHMED ESSA PLAINTIFF ANO MUKAMBISAFARILODGE COMMISSIONER OF LANDS ATTORNEY GENERAL 1st DEFENDANT 2nd DEFENDANT 3rd DEFENDANT BEFORE HON MRS JUSTICES. KAUNDA NEWA IN CHAMBERS THIS 7 th DAY OF JANUARY, 2026 For the Plaintiff For the ]st Defendant For 2 11d & 3rd Defendants Mrs B Keams, Messrs Jane Bulaya and Partners and Mr S. Bwalya Jr, Messrs Solly Patel Hamir & Lawrence Mr C. Kamelu, Messrs Mwenye & Mwitwa Advocates No app earance RULING CASES REFERRED TO: 1. Godfrey Miyanda v the High Court 1984 ZR 62 2. Zambia Seed Company Limited and Chartered International (PVT) Limited 1999 ZR 51 3. Twampane Mining Cooperation Society Limited v E. M Storti Mining Limited Selected Judgment No 20 of 2011 4. Access Bank (Zambia) Limited v Group Five/Zcon Business Park Joint Venture SCZ/8/52/2014 5. Hakainde Hichilema and Godfrey Bwalya Mwamba v Edgar Lungu and others Ruling No 33 of 2016 6. Mahenshkumar Somabhai Patel & Himanshu Patel v Freeze-0- Matice Patel & Ajoy J. Paul Selected Judgment No 3 Of 2017 7. Antonio Ventriglia and another v Eastern and Southern African Trade Development Bank and another CAZ Appeal No 109 of 2019 8. Jonathan Van Blerk v The Attorney General and others SCZ/8/03/2020 9. Citibank Zambia Limited v Suhayl Dudia Appeal No 6 of 2022 R2 10. Charles Laima v Pulse Financial Services Limited Appeal No 192 of 11. Nigel George Seabrook v Catherine Hovstard Van Aart Consolidated Appeal No 220 of 2024 LEGISLATION REFERRED TO: 1. The Rules of the Supreme Court of England, 1965, 1999 Edition OTHER WORKS REFERRED TO: 1. Atkins Court Forms Volume 9 2. Halsbury's Laws of England, 4 th Edition Re-Issue Volume 26 3 . Zambian Civil Procedure: Commentary and Cases, Volume 2, by Patrick Matibini, Lexis Nexis, 2017 1. INTRODUCTION 1.1 On 10 th June, 2024, Idris Ahmed Essa, commenced this action by Writ of Summons which is accompanied by a statement of claim and the other requisite documents. 1.2 He seeks the following reliefs: r. An Order that the Consent Order dated 23rd November, 2023 under cause number 2020/ HP/ 0279 was entered into by mistake and misrepresentation of the facts as Idris Ahmed Essa being the 3rd Respondent in the original action did not consent or have knowledge of the consent Order and was never given an opportunity to be heard before the Consent Order was granted nor did he sign as a party to the matter who is likely to be affected by the said Consent Order; 11. An Order setting aside the Consent Order dated 23rd November, 2023 under cause number 2020/ HP/ 0279 on the basis that the signed Consent Order that cancelled entry number No 4 and reinstated entries No R3 1 and 2 of the Lands Register relating to Certificate No 202 48 of Fann No Mumbw/ 1386308 was done contrary to the provisions of the law on correcting of omissions and errors in the Lands Register; m. An Order to reinstate entry No 4 and cancel entries No 1 and 2 in the Lands Register made through the Consent Order dated 23rd November, 2023 to which Idris Ahmed Essa was not a part of, which act is illegal; w. An Order directing the Commissioner of Lands to accordingly reverse the reinstatement of the entries No 1 and 2 of the Lands Register relating to certificate of title No 20248; v. General and punitive damages against Mukambi Safari Lodge for intentionally misleading the Court and for their illegal actions on Idris Ahmed Essa's land which has caused him loss; vz. Special damages zn excess of K2, 500, 000.00 occasioned to Idris Ahmed Essa arising from Mukambi Safari Lodge by not allowing Idris Ahmed Essa to com m ence construction on the land for eight years, causing financial, mental and physical stress on Idris Ahmed Essa; vzz. An Order for the demolition of all structures illegally constructed on Idris Ahmed Essa's land; vzzz. Any further relief that the Court may deem.fit; zx. x. Legal Costs of the proceedings; Interest on the amounts found due. R4 1.3 Then by an application to determine the matter on qu estions of law or construction, which was filed on 18th September, 2025, pursuant to Order 14A Rules 1 a nd 2 of the Rules of the S upreme Court of England, 1965, 1999 Edition, Mukambi Safari Lod ge seeks the Court's determination of the following questions: 1. Whether the action by Idris Ahmed Essa should be dismissed for irregularity and the Court's want of jurisdiction on the ground that the Writ of Summ ons and statement of claim contain extraneous and excessive claims beyond what the law permits in an action to set aside a consent order; and 11. Further or in the alternative, w hether th e action by Id ris Ahmed Essa should be dismissed for want of prosecution on the ground that Idris Ahmed Essa has Jailed and/ or neglected to comply with the Court's Orders for Directions dated 21 st August, 2024. AND TAKE NOTICE that if the determination of any of the above questions is in the affirmative, Mukambi Safari Lodge will submit and pray that the whole action be dismissed forthwith, with costs to Mukambi Safari Lodge. 1.4 The summons was supported by an affidavit and a List of Authorities . 1.5 Idris Ahmed Essa in opposition to the application, filed an affidavit in opposition and a List of Authorities and Skeleton Arguments in opposition on 27t h October, 2025. RS 2. SUBMISSIONS AT THE HEARING SUBMISSIONS BY COUNSEL FOR MUKAMBI SAFARI LODGE 2.1 Counsel for Mukambi Safari Lodge stated that they relied on the affidavit and List of Authorities which were filed 1n support of the application on 18 th September, 2025. 2 .2 In augmenting, Counsel stated that one of the issues that had been raised in the application, was that there had been a want of prosecution of the m atter on the part of Idris Ahmed Essa, as orders for directions were issued. Note was made th at Idris Ahmed Essa filed the reply out of time, beyond the seven days that were prescribed by the Orders for Directions. 2.3 Counsel further stated that as a way of curing th e default retrospectively, Counsel for Idris Ahmed Essa served on Counsel for Mukambi Safari Lodge, Consent Summons to vary the Orders for Directions. However, Counsel for Mukambi Safari Lodge did not respond to the said documents which were served, as they were improper to cure the defect by way of consent. 2.4 Reliance in that r egard, was placed on the case of Nigel George Seabrook v Catherine Hovstard Van Aart (11J, with submission being made, that in paragraphs 15.26, 15.29 and 15:30 of the Judgment in that case, emphasis was made that consents could not be used as exemptions to the Rules of the Court. R6 2.5 Therefore, Counsel's submission was that consid ering that the reply was filed outside the directives in the Orders for Directions, th e said reply was improperly b efore the Court. Further submission was made, that as over a year had elapsed a nd no action having been taken to cure the defect, th ere had been want of prosecution of the matter. 2 .6 Accordingly, Counsel prayed that on the totality of the issues that h ad been raised, the matter be dismissed with costs. RESPONSE BY COUNSEL FOR IDRIS AHMED ESSA 2 .7 Mr Bwalya, in response, stated that they relied on the affidavit in opposition as well as the List of Authorities and Skeleton Arguments in opposition, which were filed on 27th October, 2025. 2 .8 He further submitted that the questions that h a d been r aised by Mukambi Safari Lodge were not suitable for determination under Order 14A of the Rules of the Supreme Court of England. Counsel also stated that they had in paragr aphs 1-2.3 of the List of Authorities and Skeleton Arguments in opposition laid down the conditions th at n eeded to be satisfied in order for reliance on Order 14A of the Rules of the Supreme Court of England to b e made . 2 .9 It was also h is submission, that inclusion in an action to set aside a Consent Judgment, con sequentia l reliefs, did not render the proceedings irregular. He went on to submit that even if the Court found that the same was irregular, the r emedy did not lie in dismissing the matter in its' entirety. R7 2.10 On the issue of non-prosecution of the matter, Counsel stated that, the same was also not an issue that was suitable for determination under Order 14A of the Rules of the Supreme Court of England. 2.11 The submission was that even if it were, the affidavit in opposition , showed that Idris Ahmed Essa had demonstrated appetite to prosecute the action to its' logical conclusion. In that regard, th e submission was that the affidavit in opposition showed t hat while the Orders for Directions were issued on 2 1st August, 2024, they were only availed to the parties on 19th September, 2024, almost a month later. 2 .12 Counsel submitted that this made observance of the time lines that were set in the Orders for Directions impossible to be complied with. 2 .13 It was a lso stated that as shown in paragraph 8 of the affidavit in opposition, Counsel for Idris Ahmed Essa made proposals inforn1ally and went ahead to share a Consent Order to vary the Orders for Directions, but n either Mukambi Safari Lodge nor the Commissioner of Lands and the Attor ney General reverted on the same. 2.14 However, Idris Ahmed Essa went a h ead a nd filed an application for an Order of injunction, with the expectation that fresh Orders for Directions would be issued. Counsel still in submission, stated that Idris Ahmed Essa had nevertheless gone a h ead to apply ex -parte, to vary the Orders for Directions. R8 2.15 This it was s tated, was evidence of willingness to prosecute the m atter. Thus, Counsel took the view that there h ad been no inordin a t e delay or contumelious disregard of the Rules, which would lead to the exercise of the draconian power to dismiss the action. 2 .1 6 His prayer was that the application be dismissed with costs, as it co u ld not b e d et ermined under Order 14A of the Rules of the Supreme Court of Eng land. REPLY BY COUNSEL FOR MUK. AMBI SAFARI LODGE 2.17 Counsel's reply , was th at it had been conced ed that the Order s for Directions were s erved on 19Lh September, 2024. However, no attempt was made to apply to vary them or to extend time to comply with the same. This Counsel took, was a lack of prosecution of the matter. 2 .18 He a lso stated tha t this, coupled w ith the fact that in the action to set aside a Consent Order, extra neous reliefs had been cla imed , it was neater to raise the issues at the same time. 2 .19 Counsel str ess ed the authorities by the Supreme Court which h ad guided on the ambit of proceedings to set aside Consen t Judgm ents. He added that even taken in isolation, the first question for determination would lead to dismissal of the action. 2 .20 Thus, h e r eiter a t ed tha t the prayer that the action be dismissed with costs . R9 3. DECISION OF THIS COURT 3 . 1 I h ave consider ed the application. Order 14A Rules 1 and 2 of the Rules of the Supreme Court of England, 1965, 1999 Edit ion, pursu ant to wh ich th e a pplication was m a d e, p rovides that: "(1) The Court may upon the application of a p arty or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears t o t he Court that - (a ) such question is suitable for determination without a full trial of the action, and (b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. (2) Upon such determination the Court may dismiss t he cause or matter or make such o rder or judgment as it thinks just." 3.2 In deposing to the affidavit wh ich was filed in su p port of the application , Eddie Kalela Mwitwa, th e Advocate who is seized with conduct of the matter on behalf of Mukambi Sa fari Lodge gave a b ack ground to how Idris Ahmed Essa commenced these proceedings. R10 3 .3 He further highlighted that Mukambi Safari Lodge entered its' appearance and filed the defence and the other do cum en ts, and served the same on Idris Ahmed Essa on 23rd July, 2024, as shown by the letter of service wh ich was exhibited as 'EKM 1 '. 3.4 Also averred, was that the advocates for Idris Ahmed Essa served the Orders for Directions on Messrs Mwenye and Mwitwa Advocates on 19th September, 2024, with the letter of service being exhibited as 'EKM2'. 3.5 It was stated that Idris Ahmed Essa filed the reply to Mukambi Safari Lodge's defence on 2 nd October, 2024, without obtaining leave of the Court, outside the time which was permitted in the Orders for Directions to do so. 3.6 Then as shown on exhibit 'EKM3', the Advocates for Idris Ahmed Essa served the reply on Messrs Mwenye and Mwitwa Advocates on 14th October, 2024. 3.7 Eddie Kalela Mwitwa still in deposing, stated that the Advocates for Idris Ahmed Essa on 14th January, 2025, without any explanation for Idris Ahmed Essa's default, served Consent Summons and a Consent Order to vary the Orders for Directions on Messrs Mwenye and Mwitwa Advocates, after Idris Ahmed Essa had defaulted on the timeframe to file the reply to Mukambi Safari Lodge's defence. 3 .8 The letter serving the documents was exhibited as 'EKM4'. Rl 1 3.9 Counsel deposed that Idris Ahmed Essa had not complied with the Orders for Directions but he instead applied for an Order of Injunction on 2nd April, 2025 . 3.10 It was averred that the main relief that Idris Ahmed Essa seeks in this matter, is to set aside the Consent Order dated 23rd November, 2023 which was executed under cause number 2020/HP/ 0 279 . 3.1 1 Eddie Kalela Mwitwa stated that in his understanding of the law as a Legal Practitioner, in an action to set aside a Consent Order, a plaintiff can only seek the one relief, being an Order to set aside the impugned Consent Order, with or without costs, and not any other r elief incidental or connected with the impugned Consent Order. 3.12 Further averment was made, that Eddie Kalela Mwitwa as Counsel who represents Mukambi Safari Lodge in cause number 2020/ HP/0279 which is before Hon Lady Justice CC. Zulu, was aware that the said matter is still subsisting and a substantive determination on the merits of the matter is yet to be m a de. 3. 13 In that regard , r efer ence was m a de to exhibit 'EVHl0' to the furth er affidavit in opposition to the a ffid avit in support of the amended ex-parte summons for an Order of interim injunction dated 27th June, 2025, as well as the affidavit in opposition to the summons and affidavit in support of an ex p a r te summons for an order of injunction dated 24 th April, 2025 a nd the exhibit thereto, 'EJVH 1 ', b e ing the impugned Consent Order. R12 3. 14 It was also deposed that cause number 2020 / HP/ 0279 came up before Hon Lady Justice CC. Zulu on 30th July, 2025, in which it was directed that the matter be adj0urned sine die pending the outcome of this matter. 3 . 15 Counsel still in deposing, stated that in his understanding, Idris Ahmed Essa being a party that claims for an Order to set aside the Consent Order b ased on mistake, illegality or misrepres entation, must prove sufficient and clear particulars of the alleged mistake, illegality or misrepresentation, but he had not done so. 3.16 In the List of Authorities and Skeleton Arguments which were filed in support of the application, Mukambi Safari Lodge relied on the case of Zambia Seed Company Limited and Chartered International (PVT) Limited f2J which held that: "By law the only way to challenge a judgment by consent would be to start an action specifically to challenge that consent judgment." 3. 1 7 Further reliance was placed on the case of Antonio Ventriglia and another v Eastern and Southern African Trade Development Bank and another f7J which reiterated the above decision, adding that the action is only for the purpose of setting aside the Consent Order or Judgment. 3.18 The case of Charles Laima v Pulse Financial Services Limited fl OJ was also relied on as authority in that regard. 3.19 Argumen t was made, that Idris Ahmed Essa in the Writ of Summons and statement of claim, had indorsed nine reliefs R13 that he seeks, only one of which s eeks to set aside the Consen t Order. 3.20 Thus, the contention was that the claims are irregularly b efore this Court, and the matter should be dismissed. 3.2 1 In further arguing, the Court's attention was drawn to the claim seeking to set aside the Consent Order as stating th at: "An Order setting aside the Consent Order dated 23rd November, 2023 under cause number 2020/HP/0279 on the basis that the signed Consent Order that cancelled entry number No 4 and reinstated entries No 1 and 2 of the Lands Register relating to Certificate No 20248 of Farm No Mumbw/1386308 was done contrary to the provisions of the law on correcting of omissions and errors in the Lands Register;" 3.22 It was a rgued that a perusal of the Writ of Summons and the Statem en t of Claim did not reveal any particulars to support the claim. Further argument was made, that Idris Ahmed Essa in the claims had not made any assertions r egarding the illegality in Mukambi Safari Lodge and the Commissioner of Land s a nd the Attorney General executing the Consent Order, but in the correction of errors on the Lands Register, which could not be the basis for setting aside the Consent Order. 3 .2 3 It was a lso a r gu ed that under the claim (i) Idris Ahmed Essa seeks: R 14 "An Order that the Consent Order dated 23rd November, under cause number 202 0/HP/0279 was entered into by mistake and misrepresentation of the facts." 3.24 However, that claim d oes not give t h e s p ecific particula rs of th e facts that were mistaken or m is r ep resen ted , and wh o mis r epresented who or who was m istaken. 3 .25 It was s tat ed that Patrick Matibini SC in the book,- Zambian Civil Pro cedure: Commentary and Cases, Volume 2 at page 1 141 states t h at: "A claim to set aside a Judg ment or an Order c annot be used as a pretext to have a second bite at the cherry. However, another way of achieving t h e s ame result is to appeal against the impugned Judgment and seek permission t o adduce fresh evidence to p r ove the fraud, mistake or misrepres e ntation. Common to bo t h procedure, is t he need to provide particulars of the fraud, mis take and misrepresentation. " 3 .26 It wa s a lso argued was that in any even t, the said claim is extra n eou s, as it is not ca lling u pon th e Court to set aside the Con sent Order on accou nt of mistake or m isrepresent a tion, but it is simply inviting the Court to make an Order which is a kin t o a d ecla r a tion . 3 .27 Stress was made, th at Idr is Ahmed Essa's action should be dismissed as it conta ins extra n eous and excessive cla ims R15 beyond what the law permits 1n a n action to set aside a Consent Order. 3.28 Authorities which were r elied on in support of the contention that t h e Court lacks jurisdiction to determine the claims in their current forms wer e Godfrey Miyanda v the High Court f1J, Citibank Zambia Limited v Suhayl Dudhia (9J, Hakainde Hichilema and Godfrey Bwalya Mwamba v Edgar Lungu and others (SJ and Access Bank (Zambia) Limited v Group Five/Zcon Business Park Joint Venture (4). 3.29 On the further argument in the alternative, that this Court should dismiss the action for want of prosecution, r eference was m ade to the Orders for Directions which the Court issued on 2 lsL Au gust, 2024, with argument being made that Mukambi Safari Lodge served its' appearance and defence on the Advocates for Idris Ahmed Essa on 23rd July, 2 024. 3.30 It was also stated that the Advocates for Idris Ahmed Essa served the Ord ers for Directions on the a dvocates for Mukambi Safari Lodge on 19th Sept ember, 2024. 3.3 1 The averments as made in the affidavit which was filed in support of the application relating to Idris Ahmed Essa filing a reply to Mukambi Safari Lodge's defence out of time of the directions which were given in the Orders for Directions was repeated, a s well as his advocates having served Messrs Mwenye a nd Mwitwa Advocates the Consent summons to vary the Orders for Directions and the Consent Order. R16 3.32 Submission was made that the filing of the reply was the trigger for the other subsequent Orders in directions in the Orders for Directions. 3.33 It was reiterated that Idris Ahmed Essa did not apply to vary the Orders for Directions, but proceeded to apply for an Order of Injunction on 2 nd April, 2025. 3.34 The argun1ent was further that the import of Statutory Instni.ment No 58 of 2020 is for matters to be heard expeditiously, and that under Order 19 Rule 8 of the said Statutory Instni.ment, a Judge may dismiss an action if after sixty d ays of filing an action, there is no progress. 3.35 Authority was also sought from the case of Twampane Mining Cooperation Society Limited v E. M Storti Mining Limited (3J, which case emphasized the importance of adher ence to the Rules of the Court. 3 .36 It was stated that under Order 25/L/1 of the Rules of the Supreme Court of England, the Court has inherent jurisdiction to dismiss a matter for want of prosecution, if there has been default in complying with the rules of the Court or excessive delay in prosecuting the action. 3.37 Bibiyana Jan e Bulaya, the advocate seized with conduct of the matter on behalf of Idris Ahed Essa, in the affidavit in opposition, whilst agreeing that the Court issued Orders for Directions on 2 1st August, 2024, stated that the same were only made available to h erself as Counsel on 19th September, 2024. R17 3.38 Her averment was that, this was after appearances were entered and d efences filed on 12th July, 2024 and 28th August, 202 4, respectively. Thus, the p eriod for filing the reply had expired when the Orders for Directions were received. 3.39 Counsel d eposed that she then proposed that the parties execute a Consent Order to vary the Orders for Directions. However, neither Mukambi Safari Lodge · nor the Commissioner of Lands and the Attorney General reverted or executed the copies of the proposed Consent Order which was s en t to th e m. 3.40 It was furth er stated that Counsel having been instructed, she had s ince filed an application to vary the Orders for Directions. 3 . 41 Deposing th a t Idris Ahmed Essa is desirous of prosecuting the m atter, Counsel stated that the application for an Order of injunction wa s necessitated by the continued activities on the disputed land, which had the potential to prejudice Idris Ahmed Essa's proprietary interests. 3.42 It was a lso Counsel's averment, that the Writ of Summons and S tatc1ncnt of Claim contain sever a l r eliefs which arise from the Consent Order, and were pleaded in response to the adverse consequences that Idris Ahmed Essa suffered following the execution of the Consent Order. 3 .43 Acknowledg men t wa s made tha t cause number 2020 /HP/0279 is still active before Hon La dy Justice C. C. Zulu. Counsel however deposed that Idris Ahmed Essa was R18 not a party to the Consent Order that was executed in that cause, hence commencing this action. 3.44 Counsel also agreed that the proceedings in cause number 2020/HP/0279 were adjourned sine die pending the outcome of this matter. 3.45 She averred that the statement of claim sets out th e factual basis upon which the Consent Order is being challen ged, including the circumstances in which it was entered into, which revealed lack of participation by Idris Ahmed Essa. 3.46 In the List of Authorities and Skeleton Arguments in opposition, Atkins Court Forms Volume 9 at pages 252 and 253 was referred to, on the object of an application that is made pursuant to Order 14A of the Rules of the Supreme Court of England. 3.4 7 It states that : "Finality. The objective of the Order is thatfinality should be achieved at an interlocutory stage. It is therefore fundamental to the question of whether or not an application under Order 14A is appropriate, that the determination of the question of law or matter of construction placed on the Court should terminate the whole action or some claim or issue contained in the action. The finality of the Order made, is of course subject to appeal." 3.48 Further reliance was placed on the case of Mahenshkumar Somabhai Patel & Himanshu Patel v Freeze-O- Matice Rl9 Patel & Ajoy J. Paul f6J as where the Supreme Court stated that the editoria l notes in Order 14A of the Rules of the Supreme Court of England provide that matters can be disposed on a point of law, without full trial where it appears that such determination will finally determine the proceedings or the issues therein, but that such should be suita ble fo r determination without a full trial. 3.49 It was argued that the contention that the reliefs sought in the Writ of Summons and statement of claim go beyond what is permissible in an action to set aside a Consent Order or Judgment , a nd therefore the Court lacks jurisdiction to determine it, a s it is irregular, was not correct. 3 .50 The submission was made on the basis that the claims that Idris Ahmed Essa has made, are anchored on a factual basis which involved the execution of a Consent Order under cause n umber 2 020 / HP / 0279, to which Idris Ahmed Essa was not a party . 3.51 Thus, h e wish e s to challenge the Consent Order as it had adversely affected his proprietary interests without his participation or consent. 3.52 It wa s ther efore denied that the reliefs sought are extraneous and the Court's jurisdiction is not ousted by the mere fact that multiple reliefs are sought in this matter. 3 .53 In that r egard , the provisions of Section 13 of the High Court Chapter 27 of the Laws of Zambia were cited, and it wa s a rgued that Mukambi Safari Lodge had not cited any statutory provision or binding authority that prohibits the R20 inclus ion of related claims alongside a prayer to set aside a Consent Order/ Judgment. 3.54 That to the contrary, Order VI of the High Court Rules permits a par ty to commence an action by Writ of Summons where the claim involves substantial factual disputes and multiple r eliefs . WHETHER MULTIPLE RELIEFS CAN BE CLAIMED IN AN ACTION TO SET ASIDE A CONSENT ORDER? 3.55 The first question for determination r evolves around Idris Ahmed Essa seeking multiple reliefs in an action whose primary objective is to set aside the Consent Order which was executed in cau se number 2020 / HP /0279 . 3 .56 Halsbury's Laws of England, 4 th Edition Re-Issue Volume 26 in p a r agraph 562 at page 286 states t h at: "unless all the parties agree, a consent order, when entered, can only be s et aside by a fresh action and an application cannot be made to the court of first instance in an original action to set aside the judgment or order except apparently in the case of an interlocutory order nor can it be done by way of appeal." 3.57 In the case of Jonathan VanBlerk vAttorney General and others (BJ the Supreme Court held that Judgment obtained through fraud or collusion , is universally held sufficient reason for vacating such a Judgment, either during or after the ti1ne at which it was rendered , and opening the d oor for another h earing of the matter. R21 3.58 The Supreme Court guided that the way to challenge a Judgment that is obtained by fraud, is by commencing a fresh action, and that the action is independent of the main action, as it seeks to challenge the process by which the Judgment was procured, and not the claims in dispute. They further stated that res judicata cannot be deployed to impugn the proceedings, as what is being impugned is the very process of how that Judgment was obtained. 3.59 In this matter, the primary objective is to set aside the Consent Order which was executed in cause number 2020 /HP /0279 on the ground that it was executed by mistake and misrepresentation, as Idris Ahmed Essa the 3rd Respondent in that cause, did not consent or have knowledge of the Consent Order and he was not given an opportunity to be heard. 3 .60 In p aragraph 10 of the statement of claim, the particulars of mistake, misrepresentation and illegality are stated. 3.61 Therefore, while Mukambi Safari Lodge contends that the said claim does not give the specific particulars of the facts that were mistaken or misrepresented, and who misrepresented who or wh o was mistaken, thus the Consent Order cannot be set aside on that basis, that is a matter that cannot be determined at this stage. 3 .62 I say so , because evidence based on the pleadings would have to be led before I can conclude that the pleadings as alleged do not establish mistake, misrepresentation or illegality. R22 3.63 The a rgument was also that extraneous reliefs other than an order to set aside the Consent Order have been claimed. 3.64 A perusa l of the indorsements in the Writ of Summons a nd statement of cla im show that the Consent Order is a lso sought to b e set aside, on the basis that the Consent Order cancelled entry No 4 and reinstated entries number 1 and 2 on the Lands Register, contrary to the law on the correcting errors or omissions on the Lands Register. 3.65 An Order to reinstate Entry No 4 on the Lands Register a nd to reverse en tries No 1 and 2 on the said Lands Register is sought on that basis as well. 3 .66 General and punitive damages, as well as special damages and demolition of structures that were illegally constructed on Idris Ahmed Essa's land are also claimed. 3.67 As noted from the guidance that the Supreme Court gave in the case of Jonathan Van Blerk v Attorney General and others (BJ an action to set aside a Judgment that is obtained by fraud is an independent action, as it seeks to challenge the process by which the Judgment was procured, and not the claims in dispute. 3.68 That b eing the case, even though that matter related to setting aside a Judgment on the basis that it was obtained by fraud, as even noted from the authorities that Mukambi Safari Lodge cited, an action to set aside a Consent Judgment/ Order is specific for that purpose. 3.69 It cannot include other reliefs which are ancillary to setting aside the Consent Judgment/Order, as once the Consent R23 Judgment/Order is set aside, the effect is that it will be as if it h ad never been entered into, and the parties in the original cause where it was executed, will revert to their original positions prior to the Consent Order or Judgment being executed, and they will resume prosecution of the matter, and the reliefs sought by all the parties as pleaded, will be determined on their merits. 3. 70 On that basis, the reliefs (ii) to (viii) and (x) as indorsed on the Writ of Summons and statement of claim are expunged from the claims. 3.7 1 Having so expunged the claims, the application was not suita ble to be brought under Order 14A of the Rules of the Supreme Court of England, as the reliefs claimed have not been determined with finality, as envisioned by the Order. FAILURE TO PROSECUTE THE MATTER 3.72 Coming to the failure to prosecute the m a tter, it has been agreed that lhe Court that had conduct of the matter prior to m y taking over , issued Orders for Directions on 21 st August, 2024, a fter Mukambi Safari Lodge entered appearance and filed its' defence on 12 th July, 2024. 3 .7 3 Counsel for Idris Ahmed Essa, stated that they only received the Orders for Directions on 19th September, 2024 and they served th e same on Counsel for Mukambi Safari Lodge on the same d a te. 3 .74 It was stated that this prompted Counsel for Idris Ahmed Essa to file the r eply out of t ime, outside the timelines which R24 were stipulated 1n Orders for Directions on 2nd October, 2024. 3.75 Counsel for Idris Ahmed Essa stated that she proposed that the Orders for Directions be varied by Consent, and she sent th e Consent Summons and Consent Orders to Counsel for Muka mbi Safari Lodge, as well as Counsel for the Commissioner of Lands and the Attorney General. However, they did not respond. 3.76 Counsel for Mukambi Safari Lodge in the affidavit which was filed in support of the application, averr ed that the Con sent Summons and Consent Order were sent to them on 14th January, 2025, without any explanation as to why Idris Ahmed Essa defaulted in complying with the timelines as set out in the Orders for Directions. 3.77 Reliance was placed on the case of Nigel George Seabrook v Catherine Hovstard Van Aa rt f 1 1J as having guided that Consent Orders cannot be used as exemptions to the Rules of the Court. 3.78 An explanation was offered for why Idris Ahmed Essa defaulted in complying with the Orders for Directions, which was that the Orders for directions were received well after the Court had issued them. Further, it has been conceded that Idris Ahmed Essa filed the Reply out of time, and he ther eafter applied for an Order of Injunction, without applying for leave to vary or extend the Orders for Directions. 3.79 He only applied on 28th October, 2025, ex-parte to vary the Or ders for Directions. R25 3.80 In view of the fact that the Orders for Directions have not been complied with by all the parties, and it is just that a defaulting party should be allowed to prosecute a matter, except where there is willful neglect to prosecute a matter, which has not been demonstrated in this case, I d irect that the said application shall be h eard interpartes. Therefore, the alternative limb of the application fails . 4 . CONCLUSION 4. 1 Th e application to vary the Orders for Directions shall com e up on 23 rd January, 2026 at 08:50 hou rs . Costs shall be in the cause, and leave to appeal is granted. DATED AT LU SAKA THE 7 t h DAY OF JANUARY, 2026 (fi<u-ur--ck. S. KAUNDA NEWA ~Ep HIGH COURT JUDGE l-i1r , 0 1 JAN :, . t~ I , ~~lie O,: ·• ... ~ .?4.,,,8:--...._ ...-, _ -,., 'f/4---.., •1~1:i 2028 14· ,. J ·~