https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1165

Korir v Angata Bargoi Farmers Society Ltd & another (Civil Appeal (Application) E022 of 2020) [2026] KECA 1165 (KLR) (12 June 2026) (Ruling) Neutral citation: [2026] KECA 1165 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Civil Appeal (Application) E022 of 2020 JM Mativo, PM Gachoka & BM Kairaria, JJA June 12, 2026 Between David Kiptanui Korir & 87 others Applicant and Angata bargoi Farmers Society Limited 1st Respondent Jonathan Kiplangat Bor (Suing on his behalf and on behalf of 523 others - 2nd - 523rd) 2nd Respondent (An appeal arising from the judgment and decree of the Narok Environment and Land Court (M.N. Kullow, J.) delivered on 23rd September 2020 in ELCC No. 370 of 2017 Environment & Land Case 370 of 2016 ) Ruling 1.The applicants’ Notice of Motion, dated 27th October 2025, is brought under on sections 3A and 3B of the Appellate Jurisdiction Act and rule 37 of the Court of Appeal Rules 2022. They pray for the following orders:1.… Spent;2.That this Honourable Court be pleased to vary, review, or set aside the consent order dated 14.10.2024, adopted as an order of this Honourable Court on 4.2.2025, to specifically provide that from the excised portion of 1,500 acres, the Applicants and the 2nd to 523rd Respondents shall each receive a share of 750 acres.3.That the Applicants' allocated portion of 750 acres shall be registered in the name of the society known as Keturo Farmers’ Cooperative Society Limited, with its initial leadership structure drawn from the 1st to 87th Applicants;4.That the 2nd to 523rd Respondents' allocated portion of 750 acres shall be registered in the name of a society known as Angata Gaa Co- operative Society Limited, with its initial leadership structure drawn from the 2nd to 523rd Respondents;5.That costs of this application be provided for. 2.The application is supported by the grounds on its face, together with the supporting, supplementary, and further affidavits of Julius Kipngeno Kirui and Michael Kirui Sitonik, sworn on 27th October 2025, 14th November 2025, and 14th November 2025, respectively. It is instructive to note that the further supplementary affidavit uploaded in the CTS system was incomplete. 3.According to the applicants, on 14th October 2024, the parties herein recorded a consent, which, amongst other orders, authorized the excision of approximately 1,500 acres from L.R. No. Transmara/Moyoi/2. The consent was adopted as an order of this court on 4th February 2025. 4.Thereafter, the District Land Registrar and District Land Surveyor Kilgoris sub-registry disembarked on the process of subdividing, resurveying, and excising the 1,500 acres of land from L.R No. Transmara/ Moyoi/2. In the course of the implementation of those orders, the applicants contended that numerous practical and logistical difficulties arose on the ground, particularly regarding the manner of subdivision, leading to disputes and a stalemate. 5.The applicants urged that the above was sufficient reason to correct the mistake. They added that they were entitled to a fair and proportionate share of the excised land, and the current arrangement did not adequately reflect their rights and expectations under the consent order. That by equality, it was not numerical, but rather an equitable resolution of a long-standing dispute between the parties. 6.That it was agreed that the applicants’ excised portion of 750 acres be registered in the name of the society known as Keturo Farmers’ Cooperative Society Limited, with its initial leadership structure drawn from the 1st to 87th applicants.Furthermore, that the 2nd to 523rd respondents' excised portion of 750 acres be registered in the name of the society known as Angata Gaa Co-operative Society Limited, with its initial leadership structure drawn from them. 7.On the 21st June 2025 the applicants resolved to pursue an equal distribution of the 1,500 acres between the two groups hence the application. They prayed that the application be allowed as it was within the jurisdiction of this Court. Furthermore, it was in the interest of justice as it was correcting an error. 8.Additionally, upon signing the consent, they were under the impression that equal shares would be given, a fact that was not implemented. Thus, the same amounted to gross misrepresentation of facts. Lastly, there was a need to provide that the excised land be divided into two equal portions, each to be registered in the names of the distinct co-operative societies representing the applicants and the 2nd to 523rd respondents, respectively. 9.The application was opposed. The 2nd respondent filed a replying affidavit, sworn on 2nd December 2025, on his own behalf, and on behalf of all but the 1st respondent. He explained that all the parties herein, except the 1st respondent, were to be registered as members of the Angata Gaa Co-operative Society Limited, accounting for 612 members. However, in this application, he observed that the applicants wanted to gain an advantage in having the applicants, 88 of them, share out 750 acres, while the respondents, 524 individuals, were being condemned to share out 750 acres. That it was not demonstrated that the consent was entered by mistake. For those reasons, the respondents prayed that the application be dismissed with costs. 10.The application was heard on 11th March 2026 in the presence of learned counsel Kipkoech for the applicants and learned counsel Mr. Bosek for the 2nd – 523rd respondents. The Court was satisfied that the hearing notice was served on all parties and proceeded to hear the appeal in the absence of the 1st respondent. 11.The applicants filed their written submissions and a list and bundle of authorities, both dated 14th November 2025. Learned counsel submitted that on the basis of section 37 of the Court of Appeal Rules, coupled with several decisions that they had cited, the application was merited. This is on account of the reason that there existed a mistake regarding the parties’ shared understanding that each group would receive 750 acres. That the mistake was mutually amongst all the parties regarding equal division of 1,500 acres. They prayed that costs follow the event. 12.The 2nd – 523rd respondents filed written submissions, together with a list and bundle of authorities, dated 11th February 2026. Learned counsel submitted that the constituent elements varying a consent were not met. That the consent distributed the parcel of land in equal shares. However, the applicant was shrewdly intending to allocate the parcel inequitably. He added that the consent was entered into voluntarily; thus, the application was misplaced. For those reasons, he prayed that the application be dismissed with costs. 13.We have considered the application, the affidavits and annexures as well as the rival submissions of the parties and analyzed the law. The applicants seek to vary the consent dated 14th October 2024, adopted by this Court on 4th February 2025. The applicants invoked rule 37 of the Court of Appeal Rules which provides:“(1) A clerical or arithmetical mistake in any judgment of the Court or any error arising therein from an accidental slip or omission may, at any time, whether before or after the judgment has been embodied in an order, be corrected by the Court, either of its own motion or on the application of any interested person so as to give effect to the intention of the Court when judgment was given.” 14.We shall discuss this provision later in this ruling as to whether that provision is applicable to the facts and circumstances herein. It is trite law that a consent order is can only be set side within the parameters akin to setting aside a contract. This Court, in SMN vs. ZMS & 3 others [2017] eKLR, held as follows:“There is now a dearth of authorities on the law governing the setting aside of consent judgments, or orders, and we are grateful to counsel for citing some of them before us. Generally, a court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties...” 15.In M & E. Consulting Engineers Limited vs. Lake Basin Development Authority & another [2015] KECA 321 (KLR), this Court held:“19.We re-affirm the dicta in the High Court case of Kenya Commercial Bank Ltd. -v- Specialised Engineering Company Ltd., 1982 KLR 485 as was upheld by this Court in Civil Appeal No. 43 of 1980 thereof where it was stated as follows:1.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 policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.2.A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side."3.An advocate has general authority to compromise on behalf of his client, as long as he is acting bona fide and not contrary to express negative direction. In the absence of proof of any express negative direction, the order shall be binding.4.The fact that a material fact within the knowledge of the client was not communicated to the advocate when he gave his consent to a court order is not sufficient ground for the client withdrawing his consent to the order before it is passed and entered even if the advocate concedes he would not have given his consent had he known these facts.5.The making by the court of a consent order is not an exercise to be done otherwise than on the basis that the parties fully understand the meaning of the order either personally or through their advocates and when made, such an order is not lightly to be set aside or varied save by consent or on one or either of the recognized grounds.” 16.The consent dated 14th October 2024, that was adopted on 4th February 2025, read as follows:“1.The appellants as well as the 2nd to 88th respondents be and are hereby registered as members of a society known as Angata Gaa Cooperative Society Limited with its initial leadership structure drawn from the Appellants as well as the 2nd to 88th Respondents;2.As members of the Society, the appellant as well as the 2nd to 88th Respondents and all persons claiming under them are entitled to a portion of land measuring 1,500 acres to be excised from L.R NO. Transmara/Moyoi/2 i.e. the suit land herein free of any encumbrances or claim whatsoever.3.A subdivision of LR NO. Transmara/Moyoi/2 will be effected so as to excise the said 1,500 acres which shall border the valid Title Deeds in Angata Barigoi Adjudication Section;4.The said 1,500 acres shall be registered in the name of Angata Gaa Cooperative Society Limited;5.Upon the subdivision and registration of the said 1,500 acres in the Society, all claims by the Appellant, 2nd to 89th Respondents and all those claiming under them shall forthwith stand extinguished;6.For the avoidance of doubt all titles existing whatsoever and purported to have been issued by the District Land Registrar in Moyoi Adjudication Section be and are hereby declared null and void;7.The District Land Registrar and District Land Surveyor at Kilgoris Lands Sub-Registry ate directed to give effect to the terms of this Consent Order within 30 days of its adoption as such.;8.Each party to bear own costs.” 17.In its stead, the applicants seek to have the consent varied, reviewed or set aside by specifically providing that from the excised portion of 1,500 acres, the applicants and 2nd – 523rd respondents to each receive 750 acres each. Thereafter, that each cluster be allocated that portion registered in their respective cooperative societies. That is to say, Keturo Farmers’ Cooperative Society Limited for the applicants and Angata Gaa Co-operative Society for the 2nd to 523rd respondents. 18.The applicant explained that the initial consent was drawn mistakenly on the belief that each party would receive an equitable resolution of the dispute. This is because when the order was being implemented, there were practical and logistical challenges. Do those propositions set out amount to a mistake? 19.Under contract law, a mistake can be classified into a common mistake, mutual or a unilateral mistake. A common mistake is one which there is no meeting of the mind, commonly known as consensus ad idem. [See Raffles vs. Wichelhaus [1864] EWHC Exch J19]. A mutual mistake occurs where, some fact which, by the common intention of the parties to a contract, whether expressed or implied, constitutes the underlying assumption without which the parties would not have made the contract they did, and which, therefore, affects the substance of the whole consideration. [See Bell vs. Lever Brothers Ltd [1931] UKHL 2] 20.A unilateral mistake, on the other hand, is one made by one party and shall void a contract if the other party knew or ought to have known of that mistake. One cannot snap up the offer. [See Hartog vs. Colin & Shields [1939] 3 All ER 566]. It is this unilateral mistake that has been invoked by the applicants as to urge this court to impeach the 21.The applicants claimed that there were logistical challenges faced in the implementation of the consent. However, those logistical challenges were not expounded further other than the surface-level allegations. In other words, we are not made aware of with the exactitude the nature of those alleged logistical challenges. Secondly, it is our view that the applicants are intent on unilaterally introducing additional clauses to the initial consent. In other words, the applicants are dissecting the consent further. 22.That in our view, does not amount to a mistake. It is clear that the applicants’ intent is to further safeguard their interests without involving the 2nd – 523rd respondents. We are not persuaded that the terms set therein were agreed upon by mistake. This is not the jurisdiction set out in rule 37 of this Court’s rules, whose purport is to correct an apparent error or clerical mistake or an accidental slip or omission. 23.For those reasons, we find that the present application is devoid of merit. It is dismissed with costs to the 2nd – 523rd respondents.It is so ordered. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE, 2026.J. MATIVO.....................................JUDGE OF APPEALM. GACHOKA C. Arb, FCIArb......................................JUDGE OF APPEALMURUNGI B. KAIRARIA.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR