https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4731

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MOMBASA** **ELC APPEAL NO. E016 OF 2025** **ABDULRAHMAN OMAR** **MWINYI MFAKI** **SAIDI MADILI** **MANLID GHARERO** **SHEE ALI FAKI** **SOPHIA SALIM** **SULEIMAN MWAKUCHENGWA** **ALIFAN TANZA** **HAMISI HASSAN NG’AMZI (Members of Vitsangalaweni Community)** **APPELLANTS** **VERSUS** **ABDULBASIT SALEH MUHSIN** **RESPONDENT** *(Being an appeal from the judgment and decree of Hon. G. Sogomo, Principal Magistrate, delivered on 7th March 2025 in Mombasa Chief Magistrate’s Court ELC Case No. 1 of 2019)* **BETWEEN** **ABDULBASIT SALEH MUHSIN** **PLAINTIFF** **VERSUS** **ABDULRAHMAN OMAR** **MWINYI MFAKI** **SAIDI MADILI** **MANLID GHARERO** **SHEE ALI FAKI** **SOPHIA SALIM** **SULEIMAN MWAKUCHENGWA** **ALIFAN TANZA** **HAMISI HASSAN NG’AMZI (Members of Vitsangalaweni Community)** **DEFENDANTS** **JUDGMENT ON CONSENT** **1.** A dispute over land is, at bottom, a dispute over belonging. It is therefore a welcome thing when parties who have contended over a parcel of earth choose to lay down their arms and compromise their differences. The parties before me have done just that. By a document dated **4th June 2026** and headed **“By Consent”,** drawn by their respective advocates, they have agreed to compromise this appeal and have moved the court to adopt that agreement as its order. **2.** The appeal arises from the judgment and decree of Hon. G. Sogomo, Principal Magistrate, delivered on **7th March 2025** in Mombasa Chief **Magistrate’s Court ELC Case No. 1 of 2019.** By his ***Memorandum of Appeal*** dated **13th March 2025**, the 1st appellant, for himself and the members of the *Vitsangalaweni* *Community*, assailed the whole of that judgment: the finding that the respondent was the rightful owner of **Mombasa/Block MSI/119**, the order that the appellants vacate the suit property, the permanent injunction, the award of general damages of **Kshs. 100,000**, and the order for costs. The appellants prayed that the appeal be allowed, the decree set aside, and their counterclaim upheld. **3.** Before the appeal could be argued, the parties reconsidered. They have returned to court, not as adversaries pressing for victory, but as neighbours seeking peace. That is the setting in which the consent falls to be considered. **The law that governs a consent** **4.** The principle is settled, and it is short. A consent judgment is a contract. It draws its force from the agreement of the parties, and the court, in adopting it, lends that agreement the arm of its authority. It follows that such a judgment binds the parties as a contract binds them, and it may be disturbed only upon those grounds that would unravel a contract — *fraud, collusion, mistake, misrepresentation, the want or ignorance of material facts, or an agreement that offends the policy of the court.*Hancox JA (as he then was) said in the case of ***Flora N. Wasike v Destimo Wamboko* [1988] eKLR**: ***“It is now settled law that a consent judgment or order has contractual effect and can only be set [a]side on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out …”*** Further in **Hirani v Kassam (1952) 19 EACA 131 (quoted in Flora Wasike)** *Adopting Seton on Judgments and Orders, 7th ed., Vol. 1, p. 124* — in outlining the grounds on which a consent may be disturbed, stated: ***“Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them … and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court …; or if the consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement.”*** **5.** But if a consent is a contract, then it carries the frontiers of a contract with it. A contract binds those who make it; it does not bind the stranger who never gave his word. The court will not, under the guise of recording a consent, make an order against one who is not before it, nor will it sanction a term that trespasses upon the domain the law has committed to another. The court's seal is not a mere formality. It is not to be affixed to that which the parties have no power to agree, nor to that which the court itself has no power to command. **The terms of the consent, taken seriatim** **6.** I turn to the consent before me, and I take its terms one by one. It is agreed by and between the appellants and the respondent that the appeal be compromised on the following terms, which I reproduce as the parties framed them: **1.** *“The Appellants acknowledge and agree that the Respondent, ABDULBASIT SALEH MUHSIN, is the rightful registered owner of MOMBASA/BLOCK MSI/119.”* **2.** *“The parties agree that the Respondent (ABDULBASIT SALEH MUHSIN) shall receive full and fair compensation from the Government of Kenya in respect of the portion of land measuring 4.5958 HA out of MOMBASA/BLOCK MSI/119, compulsorily acquired by the National Government for the construction of MOMBASA GATE BRIDGE PROJECT – BRIDGE APPROACHES (MGB) PROJECT as per the Gazette Notice No. 6418, Kenya Gazette Vol. CXXVII No. 93 dated 16th May, 2025.”* **3.** *“The parties agree that in respect of any houses and/or developments erected on the acquired portion by the Appellants, the Appellants shall be compensated forthwith for the houses and/or developments by the acquiring authority.”* **4.** *“The parties agree that the remaining portion of MOMBASA/BLOCK MSI/119 not affected by the compulsory acquisition shall remain in the possession of the Appellants, who shall process the relevant title documents at their own cost.”* **5.** *“This Consent shall be adopted as an Order of this Honourable Court and shall supersede the judgment and decree of Hon. G. Sogomo delivered in Mombasa MC ELC No. 1 of 2019.”* **6.** *“This CONSENT marks the full and final settlement of the Appeal. Each party shall bear its own costs.”* **The terms the court adopts** **7.** **Clauses 1, 4, 5 and 6** give me no pause. They lie squarely within the power of these parties to agree and within the power of this court to order. By **clause 1** the appellants acknowledge the respondent as the registered owner of **Mombasa/Block MSI/119**; that is the very heart of the dispute, and the appellants are entitled to concede it. By **clause 4** the residue not touched by the acquisition remains with the appellants, who are to perfect their title at their own cost; that too is theirs to agree**. Clause 5** does no more than give the consent its ordinary effect — *to dispose of the appeal and to supersede the decree below*. And **clause 6** leaves each party to bear its own costs, which upon a compromise is not only permissible but fitting. ***These clauses I adopt, verbatim, as the order of the court.*** **The court’s concern with clauses 2 and 3** **8.** **Clauses 2 and 3** are of a different character, and here I must pause. They do not settle what lies between the appellants and the respondent. They reach outward, and they lay a burden upon shoulders that are not before me. **Clause 2** provides that the respondent *“shall receive full and fair compensation from the Government of Kenya.”* **Clause 3** provides that the appellants *“shall be compensated forthwith … by the acquiring authority.”* Yet neither the Government of Kenya, nor the acquiring authority, nor the National Land Commission is a party to this appeal. They have not been heard. They have not consented. They are strangers to this record. **9.** ***Two*** obstacles stand in the way of my ordering these clauses as they are framed. The ***first*** is the plainest rule of contract, that is consent; a party cannot, by his own agreement, bind a man who never agreed. Privity forbids it. A consent between the appellants and the respondent cannot command the public purse to open. The ***second*** obstacle is one of jurisdiction and statute. The duty to assess and to pay just compensation upon a compulsory acquisition is not a duty this court may parcel out by consent. Parliament has placed it, by **sections 111, 117 and 125 of the Land Act, 2012**, upon the National Land Commission, and upon the Commission alone, as stated in ***Geyser International Assets Limited v Attorney General & 3 others [2023] KEELC 21591 (KLR)***. I quote ***“… the law imposes the obligation to pay compensation for the compulsory acquisition of land exclusively and squarely on the National Land Commission … and not any other person or agency …”*** A party aggrieved by its measure has his remedy before the Land Acquisition Tribunal. To make an order directing the Government or the acquiring authority to pay would be to command a body not before me to perform a duty the law has entrusted to another still. That I cannot do, and that I will not pretend to do. **10.** I would add a word, as *obiter dictum*, upon a matter that touches the very foundation of the consent. The appellants are described as “Members of the *Vitsangalaweni Community*.” Where a community’s land is in issue, the interests at stake are not those of eight or nine named persons only, but of the community as a whole; and the Community Land Act, 2016 is jealous of how such interests may be dealt with. Nothing in this ruling is to be taken as a finding that the named appellants may bind the wider community, or that any dealing with community land has been shown to be regular. That question is not before me, and I leave it expressly open. **11.** How then am I to give effect to the parties’ evident and commendable desire to settle, without lending the court’s hand to that which it cannot lawfully do? The answer is neither to strike the whole consent down nor to swallow it whole. It is to record clauses 2 and 3 for what they truly are. They are not, and cannot be, an order of this court against the Government of Kenya, the acquiring authority, or the National Land Commission. They are, at most, the parties’ shared acknowledgment of the statutory process of compensation that is already under way by force of the Gazette Notice — a recital of their common understanding, and a record of who, as between themselves, is to look to that process for what. So read, and so limited, they do no violence to the law, and they preserve the peace the parties have made. **Disposition and orders** **12.** For the reasons I have given, and being satisfied that the consent was freely entered into by the parties through their advocates, and that it is tainted by neither fraud nor collusion nor illegality save in the respects I have addressed, I make the following orders: ***(a) The consent dated 4th June 2026 is adopted as the order of this court to the extent, and subject to the qualifications, set out below.*** ***(b) Clauses 1, 4, 5 and 6 of the consent are adopted verbatim as the order of the court. To wit — (i) the appellants acknowledge the respondent as the rightful registered owner of Mombasa/Block MSI/119; (ii) the remaining portion of Mombasa/Block MSI/119 not affected by the compulsory acquisition shall remain in the possession of the appellants, who shall process the relevant title documents at their own cost; (iii) this judgment supersedes the judgment and decree of Hon. G. Sogomo delivered in Mombasa MC ELC No. 1 of 2019; and (iv) this settlement is in full and final settlement of the appeal.*** ***(c) Clauses 2 and 3 of the consent are recorded, and adopted only, as the parties’ mutual acknowledgment of the compulsory acquisition of the portion measuring 4.5958 HA out of Mombasa/Block MSI/119 pursuant to Gazette Notice No. 6418 of 16th May 2025, and of their common understanding as to who, as between themselves, is entitled to the compensation and to compensation for developments arising therefrom.*** ***(d) For the avoidance of doubt, clauses 2 and 3 are not, and shall not operate as, an order of this court binding the Government of Kenya, the acquiring authority, or the National Land Commission, none of whom is a party to this appeal.*** ***(e) Each party shall bear its own costs of the appeal.*** **13.** It is so ordered. Let the peace the parties have made stand; firm where the law allows it, and no further than the law allows. This judgment is dated, signed and delivered virtually vide Microsoft Teams at Mombasa this 23rd day of July, 2026. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **AKELLO, B., OGW** **JUDGE** **In the presence of:** Mr. Muyala — for the Appellants N/A — for the 1st Respondent N/A — for the 2nd Respondent Gillian Mutamba – Court Assistant