[2024] KEELC 4501 (KLR)

Kalliste Limited v Bendera & 77 others (Civil Case 509 of 2011) [2024] KEELC 4501 (KLR) (13 May 2024) (Ruling)

Neutral citation: [2024] KEELC 4501 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Civil Case 509 of 2011

LL Naikuni, J

May 13, 2024

Between

Kalliste Limited

Plaintiff

and

Bakari Bendera & 77 others

Defendant

Ruling

I. Introduction 1. This ruling is in respect to the Notice of Motion application dated 6th October, 2023 by Kalliste Limited, the Plaintiff/Applicant herein. The application was brought under the provision of Sections 1A, 3A and 80 of the Civil Procedure Act, Cap. 21 Order 1 Rules 3 & 10, Order 2 Rule 15 and Order 45 of the Civil Procedure Rules, 2010 and Article 159 of the Constitution of Kenya, 2010.

2. Upon being served with the application, the Defendants filed replies accordingly. The Honourable Court will be assessing the issues raised thereof in depth at a later stage of this Ruling hereof.

II. The Plaintiff/Applicant’s case 3. The Plaintiff/Applicant sought for the following orders:-a.Spent.b.The ruling/direction of this Honourable Court delivered/issued on 15th March 2022 be and is hereby reviewed and varied to the extent that order (b) thereof requiring the Plaintiff to formally move the court to rectify the decree of 16th April 2023 and issued on 2nd May 2013 and to align the names of the 1st to 40th Defendants to be in tandem with those in the filed two (2) Defences dated 26th October 2011 and 16th December 2011 be and is hereby set aside.c.An order be and is hereby made that the names of the 322 Defendants in this suit shall henceforth be aligned and appearing the sequence in which they were added to this suit starting with the original 78 indicated in the Plaint dated 16th September 2011, followed by the 29 Defendants added by the order made on 10th July 2012 (Mwongo ,J.), then the 10 Defendants added by the order made 19th November 2012 (Mwera, J.) and finally the 205 added by the order of 28th May 2014 (Mukunya, J) and all pleadings and documents subsequently filed in court or emanating from this court shall reflect the sequence listed In the said Schedule.d.The parties be and are hereby directed to amend their pleadings within 14 days of this order so as to reflect the new sequence and numbering of the Defendants' names in accordance with order (3) above.e.Following the nullification of the decree of 16th April 2023 and issued on 2nd May 2013 vide this Court's ruling/direction delivered on 15th March 2022, the consent dated 27th November 2012 be and is hereby adopted as an order of this court to the extent that the same is binding upon and is to be executed/enforced against the persons listed in the said consent who are parties to this suit.f.The Plaintiff to be at liberty to extract a formal order ensuing from the consent dated 27th November 2012 showing the names of the Defendants as aligned pursuant to order 3 above.g.The Memorandum of Appearance by Messrs. Jengo & Associates dated 7th December 2011 and filed on 25th January 2012 be and is hereby struck out and expunged from the court record.h.The Defence dated 16th December 2011 and filed on 25th January 2012 by Messrs. Jengo & Assocates be and is hereby struck out.i.The ruling and/or order of this Honourable Court made on 4th July 2023 be and is hereby set aside and the suit be set down for hearing at the earliest available date.j.Costs of this application be provided for.

4. The application by the Plaintiff/Applicant herein was premised on the grounds, testimonial facts and averments made out under the 30 Paragraphed Supporting Affidavit of WILLIS O. OLUGA sworn and dated 6th October, 2023 with five annexures marked as “WO - 1” to 7”. The Plaintiff/Applicant averred that:a.This suit was instituted vide a Plaint dated and filed on 16th September, 2011. In the Plaint, a total of 78 Defendants were listed.b.The Law firm of Messrs. Apollo Muinde & Associates Advocates entered appearance for all the 78 Defendants vide a Memorandum of Appearance dated and filed on 5th October 2011. Annexed in the affidavit and marked as “WO - 1” was a true copy of the Memorandum of Appearance by Messrs. Apollo Muinde & Associates Advocates.c.The Law firm of Messrs. Apollo Muinde & Associates Advocates filed a Statement of Defence dated 26th October 2011 for all the 78 Defendants. Annexed in the affidavit and marked as “WO - 2” was a true copy of the Statement of Defence by Apollo Muinde & Associates Advocates.d.On 25th January 2012, the Law firm of Messrs. Jengo & Associates purported to file yet another Memorandum of Appearance dated 7th December, 2011 on behalf of some of the Defendants on whose behalf the firm of Messrs. Apollo Muinde & Associates Advocates had already entered appearance. Annexed in the affidavit and marked as “WO - 3” was a true copy of the Memorandum of Appearance by Messrs. Jengo & Associates.e.He was aware that a Memorandum of Appearance could not be filed twice and by different Law firms on behalf of the same Defendants. What the Law firm of Messrs. Jengo & Associates ought to have filed was a Notice of Change of Advocates and not a Memorandum of Appearance. Accordingly, the Memorandum of Appearance dated 7th December 2011 by Messrs. Jengo & Associates was irregularly on record and is for striking out.f.On 25th January 2012, Messrs. Jengo & Associates filed a Defence dated 16th December, 2011 on behalf some of the Defendants yet there was already a Statement of Defence filed on behalf of those same Defendants by Messrs. Apollo Muinde & Associates Advocates dated 26th October 2011 which had been filed for all the 78 Defendants, annexed in the affidavit and marked as “WO - 4” was a true copy of the Defence dated 16th December 2011 by the law firm of Messrs. Jengo & Associates.g.Accordingly, the Defence dated 16th December 2011 by Messrs. Jengo & Associates was irregularly on record and was for striking out since there could never be two different defences by two (2) different Law firms for the same Defendants.h.The Law firm of Messrs. Apollo Muinde & Associates Advocates filed a Chamber Summons application dated 9th July 2012 seeking that some 29 persons be added to this suit as Defendants. The application was allowed by an order made by Justice Mwongo on 10th July 2012 (refer to court proceedings). Annexed in the affidavit and marked as “WO - 5” was a true copy of the application dated 9th July 2012. i.The Law firm of Messrs. Apollo Muinde & Associates Advocates filed another Chamber Summons application dated 19th November 2012 seeking that some 10 persons be added to this suit as defendants. The application was allowed by an order made by Justice Mwera on 19th November 2012 (refer to court proceedings). Annexed in the affidavit and marked as “WO - 6” was a true copy of the application dated 19th November 2012. j.The Law firm of Messrs. Jengo & Associates Advocates filed a Chamber Summons application dated 15th July 2012 seeking that some persons be added to this suit as defendants. The application was allowed by ruling delivered by Justice Mukunya on 28th May 2014. Annexed herewith and jointly marked as “WO – 7” was a true copy of the application dated 15th July 2012 and the ruling by Justice Mukunya.k.It was therefore clear that other than the 78 Defendants who were listed in the Plaint, other Defendants were subsequently added to this suit. In the circumstances, it was imperative that the court record be corrected to reflect the names of all Defendants who were originally sued plus those who were subsequently added.l.The Plaintiff's erstwhile advocates, Messrs. Joseph Munyithyaa & Company Advocates and the Defendant’s advocates, Apollo Muinde & Company Advocates filed a consent dated 27th November 2012. Annexed in the affidavit and marked as “WO - 7” was a true copy of the consent.m.The said consent provided that the persons listed in the Schedule of the consent to vacate the suit property and that their houses be demolished since they had received due compensation from the Plaintiff. He was aware that some of the persons listed in the Schedule of the consent were not listed in the Plaint or the defence but were parties to this suit aftertheir names were added through applications and order of this court as highlighted hereinabove.n.There was need to align the names of the Defendants because other than the 78 Defendants originally listed in the Plaint, there had been more Defendants added to this case following three respective applications by the Defendants which applications were allowed vide court orders made on 10th July 2012 (Mwongo,J.), 19th November 2012 (Mwera, J.) and 28th May 2014 (Mukunya, J).o.For proper order and to avoid any confusion, it was important that all persons who were either originally named as Defendants in the Plaint or subsequently added by an order of the court be properly identified. As it stands now, there are a total of 322 Defendants to this suit and their names should now appear in the sequence in which they were added to this suit starting with the original 78, then the 29 added by the Law firm of Messrs. Apollo Muinde & Associates Advocates, the 10 added Apollo Muinde & Associates Advocates and finally the 205 added by Messrs. Jengo & Associates Advocates. It was therefore not in tandem with the court record when this Honourable Court in its ruling/direction delivered on 22nd March 2022 indicated that there was defect in the names listed in the consent because the same did not align with what was listed in the defence.p.The error made by the court as far as the names listed in the consent was concerned was apparent on the face of the record. There was sufficient reason to correct the error since the names were not listed in accordance with either the Plaint or the defence but only the names of the Defendants who had agreed to vacate after receiving compensation were included in the consent. It was not possible to list the persons in the consent in the sequence in which they appear in the Defence or Plaint because some people in the consent wereadded to the case later. The court's ruling ought to be corrected to reflect the foregoing fact.q.At paragraph 9 of the ruling/direction delivered on 15th March 2022, the Honourable Court erroneously held that there was major defect in the names listed In the consent because the same did not agree with the names in the Defence. That finding was made in error and contrary to the court record because some of the names in the consent included Defendants who were not among the 78 Defendants originally listed in the Plaint but were added to this case following three respective applications by the Defendants which applications were allowed vide court orders made on 10th July 2012 (Mwongo, J.). 19th November 2012 (Mwera, J.) and 28th May 2014 (Mukunya, J). In the ruling/direction delivered on 15th March 2022, the Honourable Court erroneously made an assumption that the names in the consent could be aligned to the Defence which was impossible because some of those names were added after both the Plaint and Defence had been filed.r.The names listed in the schedule of the consent were only names of the Defendants who had been paid and who were part of the consent. Therefore, the holding in the ruling/direction delivered on 15th March, 2022 that the names of the Defendants in the consent are different from the way they appear in the Defence and that the names should have started with the name of the 1st Defendant, Bakari Bandera and so forth was an error apparent on the face of the record because the names of Defendants who were not part of the consent could not be included in the schedule.s.After the Honourable Court had declared the Decree dated 16th April 2013 and issued on 2nd May 2013 to be a nullity because there could be no two (2) Decrees in one case, the said Decree ceased to exist and therefore there was nothing to be rectified. Accordingly, Order (b) of the Ruling/Direction dated 15th March 2022 requiring rectification of a decree that has been declared anullity was an apparent error deserving rectification/review.t.On 4th July, 2023, he instructed Ms. Angela o. Ogejoh, Advocate who was an associate in his Law firm to attend court for mention. He was informed by Ms. Angela O. Ogejoh, Advocate, that she inadvertently did not hear or capture the part of the Ruling/Direction of the court specifying that the suit shall stand dismissed if the Plaintiff never moved this Court within 90 days. The inadvertent mistake of the Counsel should not be visited upon the Plaintiff (refer to the Supporting Affidavit of Ms. Angela O. Ogejoh, Advocate filed herewith).u.The 90 days given to the Plaintiff/Applicant were due to lapse on 4th October 2023 but on 3rd October 2023 when he appeared in court for a mention, this Honourable Court extended the period within which the Plaintiff/Applicant was to move court by another three (3) days.

III. Submissions 5. On 16th November, 2023 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 6th October, 2023 be disposed of by way of written submissions. Pursuant to that by the time the Court was penning down its Ruling, the Honourable Court was only able to access the Submissions by the 7th , 12th , 14th , 15th , 16th , 17th , 18th , 22nd , 23rd , 24th , 25th , 50th , 52nd , 53rd , 55th , 57th , 59th , 60th ,61st , 63rd ,64th , 66th , 67th , 70th , 71st , 73rd , 74th , 75th and 77th Defendants whom it deemed to have complied. It reserved the delivery of its on 21st March, 2023 by Court accordingly. However, due to unavoidable reasons, the Ruling was deferred and eventually delivered on 13th May, 2024.

A. The Written Submissions by the 7th , 12th , 14th , 15th , 16th , 17th , 18th , 22nd , 23rd , 24th , 25th , 50th , 52nd , 53rd , 55th , 57th , 59th , 60th ,61st , 63rd ,64th , 66th , 67th , 70th , 71st , 73rd , 74th , 75th and 77th Defendants 6. While opposing the Notice of Motion application dated 6th October 2023 by the Plaintiff, the Learned Counsel for the some of the Defendants the Law firm of Messers. Jengo Associates & Company Advocates filed their written submissions dated 11th April, 2024. Mr. Jengo Advocate informed Court that what was there for review was an order by Court dated 15th March, 2022. the Defendants/Respondents filed a Replying Affidavit on 25th October 2023. Being an application for review, principally then this court was guided by the provision of Section 80 of the Civil Procedure Act, Cap. 21 and Order 45 of the Civil Procedure Rules, 2010 on specific grounds. He stated that this was out by the court of appeal in the Case of “Multipurpose Co - operative Society Limited - Versus - Senser & 3 Others (Civil Appeal 160 of 2018) (2023) KICA 441 (KLR) (16 April 2023) (Judgement) as:-“39. It is trite that not all cases qualify for review. The grounds for review are narrower in scope compared to an appeal. The main grounds for review are; discovery of new and important matter of evidence; mistake or error apparent on the face of the record; and any other sufficient reason and most importantly, the application has to be made without unreasonable delay. See this Court's decision in Otieno, Ragot Company Advocates vs. National Bank of Kenya Limited[2020] eKLR.40. Section 80 of the Civil Procedure Act states that:Any person who considers himself aggrieveda.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. QUOTE41. Order 45 Rule 1 of the Civil Procedure Rules states that:(1)Any person considering himself aggrieved-a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.” (Emphasis ours)42. It is not in dispute that the ground that the appellant relies on to implore us to allow this appeal is that there was an error apparent on the face of the record where the impugned ruling was concerned. What then constitutes an error apparent on the face of the record? In Nyamogo Nyamogo – Versus - Kogo (Supra), this Court addressed that question as follows:“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal."43. Sir Dinshah Fardunj Mulla in Mulla, The Code of Civil Procedure, and 18th Edition at page 3665 had this to say:“An error which is not self-evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review.....error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. The scope of the power of review as envisaged under 0 47,r 1,Code of Civil Procedure (India's equivalent of our Order 45 of the Rules) is very limited and the review must be confined strictly only to the errors apparent on the face of the record. A re-appraisal of the evidence on the record for finding out the error would amount to an exercise of appellate jurisdiction, which is not permissible by the statute...” QUOTE44. The appellant claimed the error was that the learned judge did not consider the question of the alleged breach or violation of the appellant's by-laws. It is evident from the record that the appellant sued the respondents for trespass. The suit was dismissed as the appellant had failed to prove fraud against the respondents. The error alluded to goes to the manner in which the learned Judge arrived at her decision. To our minds the same cannot be properly classified as an error apparent on the face of the record. In the case of in Pancras T. Swai – Versus - Kenya Breweries Limited [2014] eKLR the court held as follows:“The appellant's right to seek review, though unfettered, could not be successfully maintained on the basis that the decision of the Court was wrong either on account of wrong application of the law or due to failure to apply the law at all."45. Similarly, in the case of National Bank of Kenya Limited – Versus - Ndungu Njau [1997] eKLR this Court stated thus:“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review."

7. Thus, according to the Learned Counsel, there were no grounds shown as to why the order made on 15th March 2022 should be reviewed by this Honourable Court. In any event, this court in its ruling dated 19th June 2023 reviewed the orders of 15th March 2022 at the instance of the Plaintiff and the court could not be called upon to review what it had already reviewed.

8. The Learned Counsel submitted that this was not a case where there was an error apparent on the face of the record. Instead, it was where a party was simply not happy with directions given by the Court. Hence its remedy was in an appeal. As if that was not enough, an application for review should be made timeously. The order of 15th March 2022, having been made 19 months before the application, it could not be said to have been made timeously hence should fail.

9. Additionally, the Learned Counsel averred that the court in its orders of 15th March 2022 and 19th June 2023 ordered the Plaintiff to file an application for review to rectify the decree of 16th April 2013 issued on 2nd May 2013 and change it into an order. The Plaintiff had not agreed with the court's direction on that issue from the wording of prayer 2 of its application. Hence, then court could not grant Order 2 of the application which did not agree with the courts directions.

10. On Whether the Plaint should be amended to as per prayer 3, the Learned Counsel submitted that it was generally accepted that an application for amendment should as a matter of course be allowed if made before the hearing. It caused prejudice to the parties that could not be compensated by costs. However, before that was made the party applying to amend pleading/Plaint on the application. In the instant case, the Plaintiff had not annexed the intended amended pleading and on that ground, the application should fail. He argued that with that, prayer number 3 and 4 of the application should fail.

11. He held that the court clarified that it never nullified the decree. It explained that the Plaintiff should apply to review the decree and transform it into an order as a file could not have more than one decrees. If the court nullified the decree which was a product of the consent that would mean that the consent was vacated. In any event the Plaintiff had already eaten the fruits of the decree and could not in the same vain ask to set it aside. The decree having been enforced, this court had become “functus officio” on the issue of the decree. To buttress on that point, the Counsel cited the case of: “PIL Kenya Limited -Versus - Joseph Oppong (2009) eKLR where the court of appeal held:-“(8)In view of the final consent order entered into by the parties in H.C.C.C. 26O of 2000 instituted in Kenya, the court's view is that all issues which the superior court was being asked to adjudicate upon in H.C.C.C. No. 446 of 2001 were directly in issue in H.C.C.C. 260 OF 2000. It is also quite clear that the issues were between the same parties or parties litigating under the same title. Consequently H.C.C.C. No. 446 of 2001 was clearly res judicata. Alternatively H.C.C.C. No. 446 of 2001 was in my view caught by judicial estoppel even if the issues raised were not the same, all the issues in the subsequent suit namely H.C.C.C. 446 of 2001, could have been raised in the earlier suit H.C.C.C. No. 260 of 2000, and if not raised they were deemed to have been raised under the doctrine of judicial estoppel or issue estoppel, because the earlier case is deemed to have dealt with all the critical issues. The suit, the subject matter of this appeal was therefore not sustainable in law and ought to have been dismissed on this ground as well. The consent order was final and binding on the parties including the Respondent.It is clear to me that the earlier consent order was approbated by the respondent in that the goods were released to him. In the result the subsequent litigation on matters which could have been raised in the earlier suit are deemed to have been finally covered by the final consent order in the earlier suit. The subsequent suit which sought damages after the goods were released pursuant to a consent order has no basis and ought to have been rejected by the superior court. I fully endorse what Turner on Estoppel by Representation states at page 334:“Where a litigant has taken the benefit, in whole or in part of a decision in his favour he is precluded from setting up in any subsequent proceedings between the same parties by way of appeal or otherwise that such decision was erroneous or, though correct as to the part which was in his favour, was, wrongly decided as to the residue".(9)In the light what is stated in (8) above the institution of H.C.C.C.No.446 of 2001 which is the subject matter of this appeal was is my view also an abuse of the court process und the suit ought to have been struck out on this ground as well. In addition, the institution of a suit which patently has no basis in law is an abuse of the court process and such a suit is unsustainable for this reason.”

12. It was the contention by the Learned Counsel that the same fate, that befell the Plaintiff in this suit with regard to the decree that they had already had its fruits benefits. Thus, the prayer was an abuse of the court process and should be dismissed with costs. He held that upon failure of prayer 5 of the application, then prayer 6 should also automatically fail.

13. With regard to the striking out of the Memorandum of appearance and defence by the Law firm of Messrs. Jengo Associates. The Learned Counsel argued that striking out a pleading was a very draconian act. It should be reverted to in the rarely occasions. This court delivered its ruling on 21st May 2018 whereby it recognized that there were Defendants represented by the Law firm of Messrs. Jengo Associates and some by Apollo Muinde & Company Advocates. Indeed, that remained the position to date. His position was that neither had Mr. Muinde nor the Defendants ever complained about their being a confusion or a mix - up on representation. Furthermore, the parties – both the Plaintiffs and the Defendants had always addressed the court since the year 2011 which was 13 years ago along. All of a sudden, the Plaintiff could not purport to suddenly turn around after 13 years and allege that the Law firm of Messrs. Jengo Associates were not on record. Besides, the Counsel averred that the Plaintiff could not purport to appoint an advocate for the Defendants. The upshot of this was that the application herein should be dismissed with costs.

14. On whether Plaintiff complied with the ninety (90) day order to file application for review issued on 4th July 2020. The Plaintiff never filed the application by 4th October 2023. Hence the suit stood dismissed on 4th October 2023 for non - compliance. However, the Plaintiff alleged that on 3rd October 2023, the Honourable Court extended the time by three days. To the Counsel, the Court record reflected otherwise. The Plaintiff never applied to extend the orders of 4th July 2023. Hence, the Honourable could not and never extended its orders of 4th July 2023. Instead the Plaintiff vehemently resisted the court orders that it files an application for review. The court directed that, in order to have what the Plaintiff was trying to say to be understood by all parties and the court, the Plaintiffs should file a formal application. It was that reason that the Plaintiff filed the current application, without the court extending time.

15. The upshot of all this was that, taking that the suit having been dismissed automatically pursuant to the orders of 4th July 2023, the Plaintiff could only proceed to file an application for reinstatement. Without reinstating the proceeding herein and the Plaintiff application are going on the wrong way. Clearly, it was an abuse of the court process as the suit never existed. He thus prayed that the application be dismissed with costs.

IV. Analysis & Determination. 16. I have carefully read and considered the pleadings herein by the Plaintiff and the 7th , 12th , 14th , 15th , 16th , 17th , 18th , 22nd , 23rd , 24th , 25th , 50th , 52nd , 53rd , 55th , 57th , 59th , 60th ,61st , 63rd ,64th , 66th , 67th , 70th , 71st , 73rd , 74th , 75th and 77th Defendants, the written submissions, the myriad of cases cited herein by parties, the relevant provisions of the Constitution of Kenya, 2010 and statures.

17. In order to arrive at an informed, Just, equitable and reasonable decision, the Honorable Court has five (5) framed issues for its determination. These are:-a.Whether the Notice of Motion application dated 6th October, 2023 seeking to have the ruling delivered on 15th March, 2022 is merited?b.Whether the ruling and/or order of this Honourable Court made on 4th July 2023 be and is hereby set aside and the suit be set down for hearing at the earliest available date?c.Whether the Applicant has made out a case for the grant of adoption of the consent dated 27th November 2012 following the nullification of the Decree dated 16th April, 2023?d.Whether the Defence dated 16th December 2011 and filed on 25th January 2012 by the Law firm of Messrs. Jengo & Associates should struck out.e.Who will bear the Costs of Notice of Motion applications dated 6th October, 2023.

Issue No. a). Whether the Notice of Motion application dated 6th October, 2023 seeking to have the ruling delivered on 15th March, 2022 is merited 18. Under this sub – title, the Honourable Court is being invited to cause a review of its own orders The principles governing review of Judgment are found in the provision of Section 80 Civil Procedure Act Cap 21 and Order 45(1) and (2) of the Civil Procedure Rules, 2010 and an appeal has been preferred. Therefore, this Honorable Court finds it significant to critically examine the provisions for review, setting aside and/or varying Court orders. These are found mainly under the provisions of law already stated herein. A clear reading of these provisions indicates that Section 80 is on the power to do so while Order 45 sets out the rules on doing it.

19. The provision of Section 80 of the Civil Procedure Act Cap. 21 provides as follows: -“Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”

20. While the provision of Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows:-“1. (1)Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

21. I wish to refer to the case of:-“Republic – Versus - Public Procurement Administrative Review Board & 2 others [2018] eKLR” it was held: -“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.”

22. From the above stated provisions, it is quite clear that they are discretionary in nature. Thus, the unfettered discretion must be exercised judiciously, not capriciously and reasonably. To qualify for being granted the orders for review, varying and/or setting aside a Court order under the above provisions to be fulfilled, the following ingredients, jurisdiction and scope are required.a.There should be a person who considers himself aggrieved by a Decree or order;b.The Decree or Order from which an appeal is allowed but from which no appeal has been preferred;c.A decree or order from which no appeal is allowed by this Act;d.There is discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or the order made; ore.On account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree or order.f.The review is by the Court which passed the decree or made the order without unreasonable delay.

23. I have previously in this Honourable Court in the case of “Sese (Suing as the Administrator of the Estate of the Late Shali Sese) – Versus - Karezi & 8 others (Environment and Land Constitutional Petition 32 of 2020) [2023] KEELC 17427 (KLR)” opined that:-“The power of review is available only when there is an error apparent on the face of the record. Indeed, this Court emphasizes that a review is not an appeal. The review must be confined to error apparent on the face of the record and re – appraisal of the entire evidence or how the Judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is permissible.”

24. Discussing the scope of the review, the Supreme Court of India in the case of “Ajit Kumar Rath – Versus - State of Orisa, (Supra).” had this to say:-“The power can be exercised on application of a person on the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier; that is to say the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason”…..means a reason sufficiently analogous to those specified in the rule…”

25. In the case of “Nyamongo & Nyamongo – Versus - Kogo [2001] EA 170” discussing what constitutes an error on the face of the record, the Court rendered itself as follows:-“An error apparent on the face of the record cannot be defined or exhaustively, there being an element of definitiveness inherent in its very nature and it must be determined judicially on facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong is certainly no ground for review though it may be one for appeal…..”

26. Now, I wish to apply these legal principles to the instant case. From the surrounding facts and inferences herein and the case by the Plaintiff/Applicant, the Honourable Court delivered its delivered a Ruling on the 15th March, 2022. From the said decision, the Court “inter alia” rendered itself verbatim as follows:-“7. I have decided to spend some considerable time on the definitions to some of the crucial legal terminologies before proceeding further herein. According to the Black Law Dictionary “Decree” means “Traditionally, a Judicial decision in a Court of equity, admiralty, divorce or probate – similar to a Judgment of a Court of Law – in favour of the will’s beneficiary it’s a courts final Judgment.Under the provision of Section 2 of the Civil Procedure Act, Cap 21, it is defined as:-“a formal expression of an adjudication which, so far as regards the court expressing it, conclusively determined the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final it includes the striking out of a Plaint and determination of any question within Section 34 or Section 91 of the Civil procedure Act 21 by does not include.(a)Any adjudication from which an appeal lies as an appeal from an order or.(b)Any order of dismissed for default.Provided that, for the purposes of appeal “Decree” includes Judgment and a Judgment shall be appealable notwithstanding the facts that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up.There are many types of decrees. These include (a) “Agreed decree” – a final Judgment whereby the terms are agreed to by the parties (b) “Consent decree” – a court decree or order that all parties agree to (c) “Custody Decree” – a decree awarding or modifying child custody.“Order” means the formal expression of any decision of a court which is not a decree and includes a rule nisi.8. Based on the above legal definitions, a suit can and should only have one decree. A situation that leads to more than decree is a nullity as it could be mis-constrained to mean that there were multiplicity of suits in one and may create confusion on their execution thereof.In the instant case, and as stated there is already a decree dated 16th April, 2013 and issued on 2nd May, 2013 following a consent entered on 3rd December, 2013. Based on the facts of the case there ought to have been an order of the court but certainty not a Decree as from the facts the suit which involves numerous Defendants has not yet been concluded and/or finalized against some of the Defendants particularly the ones represented by Mr. Jengo. To allow the situation to persist it will mean upon hearing and final determination of this suit, there will be two (2) Decrees in one suit which definitely will be great legal misnomer and an error to boot. This situation must be avoided from the onset. As they say the need to cut from the bud, it must be cured at the earliest time possible.9. Additionally, this court has taken judicial notice that the Decree has certain misleading information and hence a major mix-up whereby for example, the order of the ostensible names of the Defendants are totally different from how they appear in the filed statement of Defence for instance the 1st Defendant Bakari Bendera and so forth are not the ones listed from the consent signed on 27th November, 2012 and filed on 3rd December, 2012 and hence the Decree of 16th April, 2013. Instead, it bears other names and order whereby the 1st name is that of Samson Muturia. This is a major defect and needs to be rectified.10. In the given circumstances, it is this courts preposition that these defects need to be rectified by the same parties who signed the consent by them moving court under the Provisions of Sections 80 of the Civil Procedure Act, Cap. 21, Orders 8 Rules 3, Order 12 Rule 7 and Order 36 Rule 10, Order 45 (1) and (2) of the Civil Procedure Rules, 2010 for amendments, review vary and/or setting aside of the said Decree to remain as a court order and correct the error apparent on the face of the record thereof.Conclusion and DispositionArising from the above detailed analysis, this Honorable court do proceed to provide the following directions:-a)That there can and should be only one decree by Court issued by Court in one matter. Taking that this suit is still subsisting there will be two Decrees in one suit. Therefore the Decree of 16th April, 2013 and issued on 2nd May, 2013 following a consent by the Law Firm of Messrs. Joseph Munyithia & Company for the Plaintiffs on the one hand and Messrs. Appolo Musinde and Associates for the 1st to 40th Defendants is defective and a nullity.b)That the aforesaid Decree of 16th April, 2013 and issued on 2nd May, 2013 should and has to be rectified forthwith by the Plaintiff and the Advocates for the 1st to 40th Defendants who were parties to the said consent by moving court formally under the Provisions of Section 80, Order 8 and 45 (1) and (2) Order 12 Rule 7 and Order 36 Rules 10 of the Civil Procedure Rules, and also aligning all the names of the 1st to 40th Defendants to be in tandem with those in the filed two (2) Defence dated 26th October, 2011 and 16th December 2011 respectively.c)That unless otherwise, stated the subsisting matter over the suit land/property and one between the 7th, 12th, 14th, 16th, 17th, 18th, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29th, 31st, 32nd, 34th, 38th, 39th, 42nd, 43rd, 46th, 47th, 48th, 49th, 50th, 53rd, 55th, 57th, 59th, 61st, 63rd, 64th, 66th, 67th, 70th, 71st, 73rd, 74th, 75th and 77th Defendants only should be set down for hearing forthwith.d)That for expediency sake the pending matter should be fixed for hearing within the next ninety (90) days from this date hereof.e)That there should be a mention of the matter on 24th May, 2022 for Pre-trial conference session, and further direction and fixing a hearing date.”

27. According to the Plaintiff/Applicant, from the a foregoing Ruling there were glaring several errors apparent on the face of the court record. Firstly, there was an error on the faceof the record regarding the names of the Defendants. This was evidenced by the following grounds that at paragraph 9 of the ruling/direction delivered on 15th March 2022, the Honourable Court erroneously held that there was major defect in the names listed in the consent because the same did not agree with the names in the Defence. That finding was made in error and contrary to the court record because some of the names in the consent included Defendants who were not among the 78 Defendants originally listed in the Plaint but were added to this case following three respective applications by the Defendants which applications were allowed vide court orders made on 10th July 2012 (Mwongo, 1. ), 19th November, 2012 (Mwera, J.) and 28th May 2014 (Mukunya, J). According to the Plaintiff, in the ruling/direction delivered on 15th March, 2022, the Honourable Court erroneously made an assumption that the names in the consent could be aligned to the Defence which was impossible because some of those names were added after both the Plaint and defence had been filed. The names listed in the schedule of the consent are only names of the Defendants who had been paid and who were part of the consent. Therefore, the holding in the ruling/direction delivered on 15th March 2022 that the names of the Defendants in the consent are different from the way they appear in the defence and that the names should have started with the name of the 1st Defendant, Bakari Bandera and so forth is an error apparent on the face of the record because the names of Defendants who are not part of the consent could not be included in the schedule.

28. According to the Plaintiff, the second error apparent on the face of the record was that after the Honourable Court had declared the Decree dated 16th April 2013 and issued on 2nd May 2013 to be a nullity because there can be no two Decrees in one case, the said decree ceased to exist. Therefore there is nothing to be rectified. Accordingly, order (b) of the ruling/direction dated 15th March 2022 requiring rectification of a Decree that has been declared a nullity is an apparent error deserving rectification/review. The Plaintiff averred that there is need to align the names of the Defendants because other than the 78 Defendants originally listed in the Plaint, there have been more Defendants added to this case following three respective applications by the Defendants which applications were allowed vide Court orders made on 10th July 2012 (Mwongo, J.), 19th November 2012 (Mwera, J.) and 28th May 2014 (Mukunya, J).For proper order and to avoid any confusion, it is important that all persons who were either originally named as Defendants in the Plaint or subsequently added by an order of the court be properly identified.

29. In all fairness, I have ventured and sought refugee from several Court decisions on the same subject matter. Discussing the scope of review, the Supreme Court of India in the case of: “Ajit Kumar Rath – Versus - State of Orisa & Others, (Supra)” had this to say:-“the power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ............... means a reason sufficiently analogous to those specified in the rule”

30. Also citing the case: “Tokesi Mambili and others – Versus - Simion Litsanga” the Court held as follows: -“i.In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason.ii.Where the application is based on sufficient reason it is for the Court to exercise its discretion.”

31. Equally, making reference to the case of:- “Nyamongo & Nyamongo – Versus - Kogo” [Supra] discussing what constitutes an error on the face of the record, the Court rendered itself as follows:-“An error apparent on the face of the record cannot be defined or exhaustively, there being an element of definitiveness inherent in its very nature and it must be determined judicially on facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong is certainly no ground for review though it may be one for appeal…..”

32. Further, in the case:- “Republic – Versus - Advocates Disciplinary Tribunal Ex - Parte Apollo Mboya [2019] eKLR” High Court of Kenya Nairobi Judicial Review Division Misc. Application No. 317 of 2018 John M. Mativo Judge culled out the following principles from a number of authorities: -“i.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression “any other sufficient reason” appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. x.The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1. ”

33. From the records it is clear that there was a mistake apparent on the face of the Court record. In the case of “Evan Bwire – Versus - Andrew Aginda Civil Appeal No. 147 of 2006” cited fin the case of “Stephen Githua Kimani – Versus - Nancy Wanjira Waruingi T/A Providence Auctioneers (2016) eKLR” the Court of Appeal held as follows:“An application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the application or case afresh. In other words, I find no material before me to demonstrate that the applicant has demonstrated the existence of new evidence which he could not get even after exercising due diligence.”

34. Consequently, it clear by now that the alleged mistake or error apparent on the face of the record exists.Having found that there was a mistake and error apparent on the face of the record or by this Honourable Court that affects the ruling/directions delivered on 15th March, 2022 by this Honourable Court, the stated reasons meet the threshold for the grant of the review orders sought by the Plaintiff/Applicant and therefore the prayer for review of the ruling/ directions delivered by this Honourable Court dated 15th March, 2022 succeeds partially only on the orders concerning the aligning of the names of the Defendants.

35. The Plaintiff has pleaded for an order to amend pleading to reflect the alignment of the Defendants names. The law on amendment of pleadings is anchored on Section 100 of the Civil Procedure Act as read with Order 8 of the Civil Procedure Rules, 2010. The provision of Order 8 Rule 3(1) and (2) of the Civil Procedure Rules, 2010 provide that:“(1)Subject to Order 1, rules 9 and 10, Order 24, rules 3,4,5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.(2)Where an application to the court for leave to make an amendment, such as is mentioned in sub rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub rule if it thinks just so to do.”

36. Further, the provision of Order 8 Rule 5 of the Civil Procedure Rules, 2010 provides as follows:-“(1)For purposes of determining the real question in controversy between the parties, or of correcting any defect or error in any proceedings, the court may either of its own motion or on the application of any party order any document to be amended in such manner as it directs and on such terms as to costs or otherwise as are just.'(emphasis added).”

37. I wish to cite the case of:- “Lewar Ventures Limited – Versus - Equity Bank(Kenya) Limited [2022] eKLR” the court endeavored to set out the parameters for amending pleadings by stating as follows:“The Court of Appeal outlined the principles in amendment of pleadings in Elijah Kipngeno Arap Bii – Versus - Kenya Commercial Bank Limited [2013] eKLR as follows:-“The law on amendment of pleading in terms of section 100 of the Civil Procedure Act and Order VIA rule 3 of the repealed Civil Procedure Rules under which the application was brought was summarized by this Court, quoting from Bullen and Leake & Jacob's Precedents of F:eading-12th Edition, in the case of Joseph Ochieng&2 others vs. First National Bank of Chicago, Civil Appeal No.149 of 1991 as follows:-“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for: power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the actionInto one of a substantially different character which could more conveniently be made the subject of a fresh action; that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.”

38. The purpose of an amendment is to determine the real question in controversy between the parties i.e. the substantive merits of the case or to correct a defect or error in the proceedings. Merits are defined as the inherent rights and wrongs of a legal case, absent of any emotional or technical bias.

39. Based on the above finding, therefore, all the Parties are hereby directed to amend their pleading and align the names of the Defendants in the intended order.

Issue No. b). Whether the ruling and/or order of this Honourable Court made on 4th July 2023 be and is hereby set aside and the suit be set down for hearing at the earliest available date. 40. Under this sub title, the Honourable Court will examine if it can vary or set aside its orders of the 4th July, 2023. In the said order the Court opined that:-“This Court gave the Plaintiff directions on what to do vide two rulings of 1’5th March, 2022 and 19th June, 2023. They ought to move Court to vacate the 2nd Decree that has not happened. I do hereby give the Plaintiff 90 days to have moved Court appropriately. Failure to which the Plaintiff’s case will automatically stand dismissed. Mention on 3rd October, 2023 for directions and appropriate action.”

41. The law on setting aside of orders is found under various provisions. They include Order 10 Rule 11; Order 12, Rule 7 and Order 40 Rule 7 of the Civil Procedure Rules, 2010. Order 12 Rule, 7 provides thus:“Where under this Order judgment has been entered or the suit has been dismissed, the court, on application, may set aside or vary the judgment or order upon such terms as may be just.”Order 40 Rule 7 states:-“Any order for an injunction may be discharged, or varied, or set aside by the Court on application made thereto by any party dissatisfied with such order”.

42. The powers of the Court to set aside ex - parte proceedings and orders is discretion and wide. But it must be exercised judicially and not capriciously or at the whim of Court. In the case of “Patel – Versus - E.A. Cargo Handling Services Limited (1974) E.A. 75” the Court was of the view that the discretion of the Court in setting aside Ex - Parte Judgments or rulings is very wide. It was stated:“There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules the principle obviously is that unless and until the count has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.”

43. This Honourable Court does not see how the orders issued on 4th July, 2023 prejudices the Plaintiff/Applicant herein in any way as there is a consent between the parties on record. Thus, the prayer sought for setting aside of the same orders fails.

ISSUE No. c). Whether the Applicant has made out a case for the grant of adoption of the consent dated 27th November 2012 following the nullification of the decree dated 16th April, 2023. 44. Under this sub title the Honourable Court will examine whether the proposed consent dated 27th November, 2012 needs to be adopted as the Consent Judgment by the Honourable Court. At this juncture, it is imperative to note that the Honourable Court has extensively deliberated on the legal aspect and hence, this Honourable Court will not belabor the point nor re – invent the wheel. In the very early and initial stages of establishing the Jurisprudence, the Court of Appeal sitting in Kisumu in the now famous case of: “Flora N. Wasike – Versus – Destimo Wamboko [1988] KLR” the Court of Appeal held thus:-“It seems that the position is exactly the same in East Africa. It was set out by Windham J, as he then was, and approved by the Court of Appeal for East Africa, in Hirani – Versus - Kassam (1952) 19 EACA 131, at 134, as follows:“The mode of paying the debt, then, is part of the consent judgment. That being so, the court cannot interfere with it except in such circumstances as would afford good ground for varying or rescinding a contact between the parties. No such ground is alleged here. The position is clearly set out in Setton on Judgments and Orders (7th edn), vol 1, P 124, as follows:“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 general for a reason which would enable the court to set aside an agreement.”

45. In another case of: “Kenya Commercial Bank Limited – Versus - Specialised Engineering Co. Ltd [1982] KLR 485”, Harris J correctly held inter alia, that:-“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 the 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.”

46. Additionally, in the case of:- “Hirani – Versus - Kassam [1952] 19 EACA 131” the Court of Appeal held;“It is now well 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: see the decision of this court in J. M. Mwakio – Versus - Kenya Commercial Bank Limited Civ Apps 28 of 1982 and 69 of 1983. In Purcell – Versus - F.C. Trigell 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 the 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.”Finally, I also wish to cite the Court of Appeal in the case of “Brooke Bond Liebig Limited – Versus - Mallya [1975] EA 266 at 269” Law Ag P said:“A court cannot interfere with a Consent Judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.”

47. The provision of Order 25 Rule 5(1) of the Civil Procedure Rules, 2010 which deals with the Doctrine of Consents (read compromise of suits) provides as follows:-“Where it is proved to the satisfaction of the Court and the Court after hearing the parties directs that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the Defendant satisfies the Plaintiff in respect of the whole or any subject matter of the suit, the Court shall on the application of any party order that such agreement, compromise of satisfaction be recorded and enter Judgment in accordance therewith.”

48. The adoption by Courts of Consents entered into by litigating parties is done in keeping with the spirit of the provision of Article 159(2)(c) of the Constitution of Kenya, 2010 and Sections 20 (1) and ( 2 ) of the Environment and Land Act, No. 19 of 2011 which exhorts Courts to encourage all forms of Alternative Dispute Resolution.

49. The Consent entered into between the parties which was dated 27th November, 2012 provided as follows:-“By consenti.The following defendants confirm that they have received the full compensation of their houses or structures standing on Plot No. 1984/V/ Mainland North as set out in this Schedule:-NO. NAME AMOUNT PAID

1. SAMSON MUTURIA 1,035,000

2. BENDERA CHAGA 560,000

3. JOSEPH GICHURU 563,000

4. SHABANMBOVU BAGALA 40,000

5. AGNES MIRITI 26,000

6. MPENDA MIRITI 28,000

7. JAMES MBATI WABIRI 80,000

8. GABRIEL MUNGURIA 37,500

9. LOISE NKATHA MUTURIA 180,000

10 ANTONY MWENDA B. 156,000

11. KENNETH GITUMA MAUA 58,000

12 HUSSEIN CHANGA BENDERA 120,000

13 SAMUEL CHAGA MWAMUMBO 120,000

14 OMARI SALIM 28,000

15 JACINTA KENDI M' IKIUGU 146,625

16 AGNES GATABI MUTISYA 70,000

17 MWANAISHA UMAZI B. 163,750

18 DANIEL MULWA MUTHAMA 180,000

19 RUTH KANGONDE NABEA 40,000

20 KIBERYA NYAA NDONGOI 10,000

21 NYAE NDUGO MWAJOTO 18,000

22 PETER KIMULI NZUKI 467,000

23 LEYMOND KIMANTHI 92,000

24 JANE KARIMI 180,000

25 STANLEY MAINYA KINOTI 42,000

26 EMILY WAIRIMU MZEE 58,000

27 MARY AGOLA NASIBO 60,000

28 AMINA MOHAMED MZEE 22,000

29 NGOMBE IKOA 50,000

30 LUCY KARAMUTA 297,500

31 GODFREY MUORI KABORO 52,800

32 FRIDA KENDI 65,000

33 EUNICE WAKIO 26,000

34 DENNIS PETER MWINDI 80,000

35 GRACE W.NJAGI 65,000

36 SAUMU MUSYOKI 12,000

37 ASHA CHIZI CHAGA 130,000

38 MARTIN KINYUA 85,000

39 NICHOLAS NYALI KILUGHA 165,000

40 HEZRON COMBA WABIRI 165,000ii.The defendants set out in the schedule in (i) above do hereby confirm that they have no other/further claim against the plaintiff over title, occupation, use or at all in relation to Plot NO.1984/V/Mainland North.iii.The defendants whose names are set out in the schedule in (i) above do hereby authorize the plaintiff to demolish any of their structures standing on Plot LR 1984/V/Mainland North which the said defendants cannot remove for fear of their neighbor’s attack.iv.The O.C.P.D Changamwe is hereby ordered to provide security to the plaintiff's agents while removing the structures left behind by the defendants in the schedule in (i) above.v.The Plaintiff’s suit against the defendants set out in the schedule in(1) above be and is hereby marked as settled with no order as to costs.

50. In the case of “Geoffrey M. Asanyo & Others – Versus – the Attorney General [2018] eKLR” where the Supreme Court of Kenya where their Lordship held:-“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 13th November 2015) was a nullity; and that Court having not formally adopted the consent by parties, was not yet functus officio.” [own emphasis]

51. A Consent entered into between parties is deemed to be tantamount to a contract between said parties and will have the same binding force as a contract. As such the Court cannot interfere with the terms of a consent unless circumstances are shown to exist that would amount to grounds for rescinding a contract.

52. From the Court record, the consent Judgment was entered into with the consultation and concurrence of all the parties in the suit. It is trite law that the parties who would want to have the court to adopt a consent judgment must be present in court on the day when the document is presented for adoption and confirm the same to the one they both signed and agreed on. I do take not though that the consent is only with reference to 40 Defendants whereas this matter was between the suit was between the Plaintiff and 78 Other Defendants.

53. Given the foregoing, the Honourable Court is not inclined in granting the same to allow parties include all the Defendants as per the suit.

Issue No. d). Whether the Defence dated 16th December 2011 and filed on 25th January 2012 by Messrs. Jengo & Associates should struck out. 54. Under this sub – heading, I anxiously and deeply considered the issues set out above. I narrowed them to be only those ones because I deliberately needed to stay on course given the prayers in the Application before me. Otherwise, the Plaintiff/Applicant seems to have gone on a frolic of heaping before the Court as many issues as he could, some of which were irrelevant to the Application. The Plaintiff/Applicant argued that it was not lawful that there were the Memorandum of Appearance by Messrs. Jengo & Associates dated 7th December 2011 on behalf of some of the Defendants (indeed the 7th , 12th , 14th , 15th , 16th , 17th , 18th , 22nd , 23rd , 24th , 25th , 50th , 52nd , 53rd , 55th , 57th , 59th , 60th ,61st , 63rd ,64th , 66th , 67th , 70th , 71st , 73rd , 74th , 75th and 77th Defendants) was filed 25th January 2012 when there was already on record a Memorandum of Appearance by Messrs. Apollo Muinde & Associates Advocates dated and filed on 5th October 2011 for all the 78 Defendants. He contended that the Law firm of Messrs. Jengo & Associates irregularly entered appearance for Defendants who were already being represented by Messrs. Apollo Muinde & Associates Advocates. His contention was that t]here can be no two Memoranda of Appearance for the same set of Defendants and it is imperative that the Memorandum of Appearance by Messrs. Jengo & Associates dated 7th December 2011 which was the latter to be filed be struck out and expunged from the record.

55. The right to attain legal representation through engaging a Legal Counsel and/or an Advocate is a constitutional right enshrined in the Constitution of Kenya, 2010, the Supreme law of Kenya. See the provision of Article 50 ( 2 ) (g) and ( h ) of the Constitution of Kenya, 2010, provisions of the Advocates Act, Cap. 16 and Order 9 of the Civil Procedure Rules, 2010. Of course, there are circumstances when an Advocate may be barred from appearing in a matter. But these are laid down in the law, particularly the Advocates Act, Chapter 16 of the Laws of Kenya and the Advocates (Practice) Rules 1966 as made pursuant to the Act, and the Law Society of Kenya Code of Standards of Professional Practice and Ethical Conduct, May 2017, Gazette Notice No. 5212. A party has a right to choose an Advocate of his own Choice. That right extends to a case where the party decides to have legal representation through as many Advocates as he can afford or think as appropriate. The only caution he should have in mind is that the Advocates’ legal fees in terms of party and party costs lie in the discretion of the Taxing Master who, when faced with a situation of a claim for fees for more than one Advocate there has to be a certificate of the Judge to that effect.

56. Indeed, it is trite law that there is no bar to a party being represented by more than one lawyer/ Advocate. The two or more Advocates may be from the same law firm or even different ones. The provision of Section 59 of the Advocates Act imports this position. It provides that:“(1)The costs of more than one Advocate may be allowed on the basis hereinafter provided in causes or matters in which the judge at the trial or on delivery of Judgment shall have certified under his hand that more than one Advocate was reasonable and proper having regard, in the case of a Plaintiff, to the amount recovered or paid in settlement or the relief awarded or the nature, importance or difficulty of the case and, in the case of a Defendant, having regard to the amount sued for or the relief claimed or the nature, importance or difficulty of the case.(2)A certificate may be granted under this rule in respect of two members or employees of the same firm.”

57. The important point to bear in mind is that from time to time, there are incidence where there exist cases brought to Court which may be convoluted, complex and difficult to handle. For instance Presidential elections, Civil, Criminal cases and so forth. Those cases may call for concerted efforts of Advocates (also referred to as “a battery of Lawyers”). In such circumstances, parties opt into engaging more than one legal Counsel to represent and act for them. There cannot be any limitation as to the number of Advocates to employ in such circumstances. Much less through or due to the apprehension of the adverse party that they will incur more costs if they lose their cause. Actually, there may be situations where parties themselves by their conduct convoluted and complicate matters before the Courts, for instance where they file application after another raising complex issues which could have as well been side-stepped so as to get to the issues in controversy. In such situations, the judge may be called upon to certify the payment of costs to more than one lawyer.The right to legal representation should not be unnecessarily hindered. In saying so, I seek guidance from the cases of:- “Supasave Retail Limited – Versus - Coward Chance (a firm) and Others”; “David Lee & Co (Lincoln) Ltd – Versus - Coward Chance (a firm) and Others (1991) 1 ALL ER” it was stated,“Cozens-Hardy MR laid down the test as being that a court must be satisfied that real mischief and real prejudice will, in all human probability, result if the solicitor is allowed to act…..As a general rule, the court will not interfere unless there be a case where mischief is rightly anticipated.”

58. Furthermore, in the Court of Appeal case of:- “Delphis Bank Limited – Versus - Channan Singh Chatthe and 6 Others” observed as follows:“The starting point is, of course, to reiterate that most valued constitutional right to a litigant; the right to a legal representative or advocate of his choice. In some cases however particularly civil, the right may be put to serious test if there is a conflict of interests which may endanger the equally hallowed principle of confidentiality in advocate/ client fiduciary relationship or where the advocate would double up as a witness.

59. I would conclude on this issue, even as the Court of Appeal espoused how valued the right to legal representation can generally be, that a party’s right to choose an advocate is his constitutional right. It may be limited. However, even where that is the case, it has to be within the law and in the same manner as other constitutional rights and freedoms which are not absolute are limited. Absent of that, the right should be left untouched.The Plaintiff/Applicant in this case purports to diminish the Defendants’ exercise of their right to have more than one Advocate to represent him in this matter. That cannot be permitted. The Plaintiff/Applicant has not brought itself within the provisions, namely, the provision of Article 24(1) of the 2010 Constitution on limitation of rights. Thus, this contention by the Plaintiff/Applicant must fail.

Issue No. e). Who will bear the Costs of Notice of Motion application dated 6th October, 2023. 60. It is now well established that costs is an issue of the discretion of Court. Costs mean the award that a party is granted at the conclusion of the legal action and/or proceedings in any litigation. The Black Law Dictionary defines cost to means:-“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”

61. Section 27 of the Civil Procedure Act grants the High Court discretionary power in the award of costs which ordinarily follow the event unless the Court for good reasons orders otherwise. Section 27 (1) provides as follows:-“(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”

62. In “Morgan Air Cargo Limited – Versus - Evrest Enterprises Limited [2014] eKLR” the court noted that;“The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that ‘’Cost follow the event’’ was driven by the fact that there could be no ‘’one-size-fit-all’’ situation on the matter. That is why section 27(1) of the Civil Procedure Act is couched the way it appears in the statute; and even all literally works and judicial decisions on costs have recognized this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances differ from case to case.”

63. In this case, in the given circumstances of this, this Honourable Court elects not to award any costs to the Notice of Motion application dated 6th October, 2023.

V. Conclusion & Disposition 64. In long analysis, the Honorable Court has carefully considered and weighed the conflicting parties’ interest as regards to balance of convenience.

65. Ultimately in view of the foregoing detailed and expansive analysis to the rather omnibus application, this court arrives at the following decision and makes below order:-a.That the Notice of Motion application dated 29th May, 2023 be and is hereby found to partially have merit and hence allowed with regards to prayers (b), (c) and (d).b.That consequent to previous orders of this Honourable Court, the Ruling/Direction of this Honourable Court delivered/ issued on 15th March 2022 be and is hereby reviewed and varied to the extent that Order (b) thereof requiring the Plaintiff to formally move the court to rectify the Decree of 16th April 2023 and issued on 2nd May 2013 and to align the names of the 1st to 40th Defendants to be in tandem with those in the filed two (2) Defences dated 26th October 2011 and 16th December 2011 be and is hereby set aside.c.That an order be and is hereby made that the names of the 322 Defendants in this suit shall henceforth be aligned and appearing the sequence in which they were added to this suit starting with the original 78 indicated in the Plaint dated 16th September 2011, followed by the 29 Defendants added by the order made on 10th July 2012 (Mwongo ,J.), then the 10 defendants added by the order made 19th November 2012 (Mwera, J.) and finally the 205 added by the order of 28th May 2014 (Mukunya, J) and all pleadings and documents subsequently filed in court or emanating from this court shall reflect the sequence listed In the said Schedule.d.That the parties be and hereby are directed to amend their pleadings within 14 days of this order so as to reflect the new sequence and numbering of the Defendants’ names in accordance with order (c) above.e.That for expediency sake, the matter shall be fixed for hearing on 16th October, 2014. f.That there are no orders as to costs.

It is so ordered accordingly.

RULING DELIEVERED THROUGH MICROSOFT TEAM VIRTUAL, SIGNED AND DATED AT MOMBASA THIS 3 TH DAY OF MAY 2024. …………………………………HON. MR. JUSTICE L. L. NAIKUNI,ENVIRONMENT AND LAND COURT ATMOMBASARuling delivered in the presence of:a. M/s. Firdaus Mbula, the Court Assistant.b. No appearance for the Plaintiff/Applicant.c. No appearance for the Defendants.