https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3023

Gitahi v Muthua & another (Enviromental and Land Originating Summons E009 of 2025) [2026] KEELC 3023 (KLR) (13 May 2026) (Ruling) Neutral citation: [2026] KEELC 3023 (KLR) Republic of Kenya In the Environment and Land Court at Nanyuki Enviromental and Land Originating Summons E009 of 2025 LN Mbugua, J May 13, 2026 Between Flora Njeri Gitahi Plaintiff and Anne Nyokabi Muthua 1st Defendant Joseph Wambugu Mureria 2nd Defendant Ruling 1.Before me is a Notice of Motion application dated 11.11.2025 seeking orders of temporary injunction, joinder into these proceedings a stay as well as the setting aside of the consent dated 27.5.2025 and all the substantive proceedings herein. The applicants contend that they have availed a deed of variation dated 30.8.2016 as proof of their lease hold interest in the suit property which lease was to terminate on 31.8.2030 a period which is yet to expire. They contend that they stand the risk of vacating the suit land prematurely unless they are joined in these proceedings. They contend that the matter is still ongoing as judgment has not been delivered and there is no decree yet. 2.Response by plaintiff;“ 1.1. That this application due to its urgency be heard exparte in the first instance and exparte orders be made. 2.That the defendants, their agents and/or servants be restrained by a temporary injunction from entering, transferring, charging, selling and or in any way interfering with the plaintiff’s quiet possession of Title No. Eusonyiro Suguroi/Block IV/234 pending the hearing and determination of this application. 3.That an order of injunction be issued restraining the defendants from transferring, charging, selling and or interfering with the plaintiff’s quiet possession of Title No. Eusonyiro Suguroi/Block IV/234 pending the hearing and final determination of this suit. 4.That this Honourable Court be pleased to transfer Nanyuki Chief Magistrate (CM ELC Case Number E068 of 2025) to this Honourable court and consolidate the same with this suit. 5.That the costs of this application be provided for.” 3.I have considered the rival arguments and submissions. In ET v Attorney General & another [2012] eKLR, the court had this to say of a consent order;“The law concerning the status of consent orders has been stated in several cases among them Flora Wasike v Destino Wamboko (supra) where the Court of Appeal stated as follows,“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 ........”In Purcell v FC Trigal Ltd (1970) 3 All ER 671, Winn LJ said at 676:“It seems to me that if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.” 4.This suit was filed by the plaintiffs as against the defendants of which the two parties recorded the consent dated 27.5.2022. Clause 10 of the said consent stated that;“This consent binds all the parties named in these proceedings and immediate members of parties respective families including their respective assigns and legal representatives.” 5.The orders sought herein would amount to variation of the consent recorded by the main parties. And as noted in previous rulings in the matter, the court cannot rewrite contracts for the parties. What more, from the pleadings and the consent, the court has not been called upon to determine any other issues. It therefore matters not that a judgment and a decree have not been issued. 6.In the case of Geoffrey M. Asanyo & 3 others v Attorney-General [2020] eKLR, the Supreme Court of Kenya stated as follows while nullifying the judgment of the Court of Appeal which was delivered yet parties had filed a consent which had not been adopted as an order of the court;“Adoption of a consent by a Court is a process, in the course of which a Court discharges the duty of evaluating the clarity of the consent placed before it by parties, and giving directions on the manner of adoption. This circumvents the risk of an unlawful Order, and validates the mode of adoption and compliance. Thus, a consent by parties becomes an Order of the Court only once it has been formally adopted by the Court. It is only from that stage, that the Court becomes functus officio. This Court having ruled that the Judgment of the Court of Appeal (dated 13 November 2015) was a nullity; and that Court having not formally adopted the consent by parties, was not yet functus officio.” 7.The court went on to state that ;“The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter…. The [principle] is that once such a decision has been taken, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be reviewed or varied by the decision-maker.” 8.As noted in the ruling of this court dated 18.3.2026, the consent made by the parties on 27.5.2022 was adopted by the court on 7.6.2022. It is a decision of the court which can only be set aside in accordance with the holding in the cited case law. In essence, the applicant has no basis to be joined in these proceedings as none exist save in terms of execution of the consent. The application dated 11.11,2025 is therefore found to be unmerited, the same is hereby dismissed with costs to the defendants. DATED, SIGNED AND DELIVERED AT NANYUKI THIS 13TH DAY OF MAY, 2026 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:M/s Njuguna h/b for Wahome Gikonyo – Plaintiff.Karaya Maina – Defendant.Gathumbi – Intended Interested Party.Nancy Mwangi – C/A.