M’Ikiao v Muthoni & 4 others (Environment and Land Appeal E016 of 2025) [2026] KEELC 3697 (KLR) (9 June 2026) (Ruling)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL CASE NO. E016 OF 2025** **ANDREW KITHINJI M’IKIAO................................... APPELLANT** **=VERSUS=** **PAULINE MUTHONI ......................................1ST RESPONDENT** **MISHECK KIAMBI.........................................2ND RESPONDENT** **JOSEPH GITUMA..........................................3RD RESPONDENT** **JANE KAJUJU*.*..............................................4TH RESPONDENT** **CAROLINE KAIGONGI………………………...……..5TH RESPONDENT** **RULING** 1. The appellant, **Andrew Kithinji M’Ikiao,** initiated this appeal vide a memorandum of appeal dated 13/3/2025. Subsequent to that, the appellant filed an application dated 15/8/2025, seeking an order staying execution of the judgment/decree of the trial court dated 12/2/2025 in **Githongo SPMC E & L Case No 69 of 2018,** pending the hearing and disposal of the appeal. 2. The application was listed for interpartes hearing on 30/9/2025. ***Ms Kerubo*** [Counsel for the appellant] and ***Mr Mwiti*** [Counsel for the respondents] subsequently attended court on 30/9/2025 and invited the court to record the following verbatim consent: ***“BY CONSENT, the application dated 15/8/2025 is compromised in the following terms:*** ***“(1) There shall be status-quo in terms of the title to the suit land in that there shall be no transfer of ownership from the 5th respondent.*** ***(2) The appellant shall file the record of appeal together with written submissions within 30 days.*** ***(3) Mention on 17/11/2025 to confirm compliance.”*** 1. The Court adopted the above consent and listed the appeal for directions on 17/11/2025. On 17/11/2025, the court admitted the appeal and gave disposal directions on the appeal. Subsequent to that, the appellant brought a notice motion dated 28/11/2025, seeking an order setting aside the above consent orders recorded on 30/9/2025 and listing the application dated 15/8/2025 for hearing interpartes. In addition, he sought an order of stay of execution pending the hearing and determination of this appeal. The said application dated 28/11/2025 is the subject of this ruling. 1. The application was premised on the grounds outlined in the motion and in the applicant’s supporting affidavit dated 28/11/2025. It was canvassed through written submissions dated 26/1/2026, filed by ***Ms Kiautha Arithi & Co Advocates***. 2. The case of the applicant is that the above consent compromised his application for orders of stay of execution dated 15/8/2025. The consent was entered into on the premise that the stay application had been overtaken by events because the title relating to the suit land had already been registered in the name of the 5th respondent. The above information was relayed to her counsel by the respondent’s counsel and was false and misleading because a current official search confirms that the title is still registered in the name of the applicant. The applicant adds that on 21/11/2025, her counsel appeared before the trial court for the hearing of the respondent’s application seeking orders directing the Executive Officer of the Lower Court to sign transfer documents conveying the suit land into the name of the 5th respondent. 3. The applicant adds that the filing of the said application in the Lower Court confirmed that no transfer had taken place as at 30/9/2025, hence the consent recorded on 30/9/2025 was irregular and was procured through misrepresentation and material non-disclosure. He states that the application for stay of execution dated 15/8/2025 is not overtaken by events and should be heard on merits. The applicant further states that unless the consent is set aside and the stay application is reinstated, the respondents will enforce the decree and effect a transfer of the suit property and he will suffer irreparable loss. It is his case that it is in the interest of justice that the consent be vacated and the stay application be reinstated for hearing. 4. The respondent opposed the application through a replying affidavit dated 28/1/2026 and submissions dated 9/2/2025, filed by ***M/s*** ***Joshua Mwiti Law Advocates***. It is the case of the respondents that indeed the transfer in favour of the respondent had not been effected at the time of recording the consent. They add that there subsists a status-quo order, preserving the suit land, pending the hearing and determination of this appeal, hence the application is frivolous, vexatious, unreasonable and only meant to delay disposal of the appeal. 1. The respondent adds that the applicant has not met the criteria for setting aside a consent order. They argue that on several occasions, the courts have held that a consent order made in the presence of both parties is binding on all parties in the proceedings. The respondents further argue that a consent order can only be discharged or set aside if it was obtained by fraud, coercion, collusion or illegal means. The respondents contend that no evidence has been adduced to demonstrate any vitiating factor that affects the consent's legality. 2. The court has considered the application, the response to the application, and the parties’ respective submissions. The court has also considered the relevant legal frameworks and jurisprudence. The key issues that fall for determination in the application are: (i) Whether the application meets the criteria upon which a court exercises jurisdiction to set aside a consent order; and (ii) Whether the plea for a stay order should be entertained in the present application. I will be brief in my analysis and disposal of the two issues. 3. Does the application meet the criteria for setting aside a consent order or judgment? The Court of Appeal outlined the relevant principle in ***Flora N Wasike v Destimo Wambuku [1988] eKLR*** in the following words: ***“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.”*** 1. The High Court [Harris J] similarly outlined the relevant principle in ***Kenya Commercial Bank Ltd v Specialized Engineering Co Ltd [1982] KLR 485*** in the following words: “***A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.”*** 1. Suffice it to state that, a court’s jurisdiction to set aside a consent order or judgment is exercised on the basis of well-settled and clear principles. The jurisdiction is not exercised whimsically or capriciously. 2. Has the applicant placed before this court evidence that satisfy the criteria for setting aside a consent order? Has he demonstrated a proper legal basis upon which this court can properly set aside the consent order? I have examined and reflected on the grounds and evidence set out in the supporting affidavit and the submissions by counsel for the applicant. The applicant pleaded that the consent was recorded on the basis that counsel for the respondent intimated to the court that the application for stay of execution had been overtaken by events since the suit property had already been transferred to the 5th respondent. Counsel argued that it was on that premise that the consent was framed and recorded. Counsel for the applicant contended that the information from counsel for the respondent was false because he subsequently conducted a search and established that the suit property was still in his name. 3. Counsel argued that on 21/11/2025, the respondents moved the trial court at **Githongo Senior Principal Magistrate Court** seeking orders for the Executive Officer to sign transfer documents conveying the suit land into the name of the 5th respondent, which confirms that the transfer had not been done. 4. The verbatim consent that is the subject matter of the application under consideration has been reproduced in paragraph 2 of this ruling. The first limb of the content reads as follows:- ***“There shall be status quo in terms of the title to the suit land in that there shall be no transfer of ownership from the 5th respondent.”*** 1. The applicant correctly contends that there was material misrepresentation by the respondents in that they misled the applicant to believe that the title to the suit land had been transferred to the 5th respondent yet they knew that the title was still in the name of the appellant. The applicant has exhibited an official search dated 27/11/2025. The official search shows that the title was still in his name as at 27/11/2025. This fact is not disputed by the respondents. 2. Given the above circumstances, the court is persuaded that the consent recorded on 30/9/2025 was procured through misrepresentation that the suit land had already been transferred to the 5th respondent or was recorded without sufficient material facts relating to the registered ownership of the suit land as at 30/9/2025. These are proper grounds for setting aside the consent order. Consequently, the court will allow the prayer seeking the setting aside of the consent order. 3. The applicant prayed for reinstatement of the application dated 15/8/2025. He simultaneously sought final stay orders in the application under consideration. The stay order which he is seeking is the very order that will be the subject of consideration in the application dated 15/8/2025. Consequently, the court directs that he canvasses that plea in the reinstated application. 4. The result is that the application dated 28/11/2025 is allowed in terms of prayers 2 and 3. The plea for an order of stay of execution shall be canvassed in the reinstated application. Costs of the application shall be in the appeal. **DATED, SIGNED AND DELIVERED AT MERU THIS 9TH DAY OF JUNE, 2026.** **B M EBOSO [MR]** **ELC JUDGE**