https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5110

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI, MILIMANI** **ELC CASE NO. E051 OF 2023** **NAOMI WANJIKU KARUMBA ...…………………… PLAINTIFF/APPLICANT** **VERSUS** **JOSEPH KAMAU KAHUNGU ……..………….. DEFENDANT/RESPONDENT** **RULING** 1. The court by an application dated 29.9.2025 is asked to (a) set aside a consent order entered by the parties on 27.4.2025 and (b) for stay of execution. The grounds are set out in the Supporting affidavit of Naomi Wanjiku Karumba sworn on the 26th of September 2025. The main reason is that the consent, which mainly favours the defendant was entered into by counsel without instructions by the Plaintiff. 2. The Application is opposed through a replying affidavit dated 18.12.2025. The court record shows that on 27.8.2025 Mr. Mwaniki, also for the Plaintiff and Mr. Mugo also for the defendant appeared before the Deputy Registrar of the court. 3. The two advocates indicated to the court that they had reached an amicable settlement of the matter executed and filed a consent dated 20.8.2026. The court, upon request by the parties, proceeded to adopt the consent as an order of the court. 4. After the consent judgment, the firm of Peter Gachuhi and Company Advocates came on record by a notice of change of Advocates dated 24.9.2025 marked NWK-3, then filed the instant application. It appears that there was no compliance with Order 9 Rule 9 of the Civil Procedure Rules by way of seeking leave of court to come on record. 5. In the Supporting Affidavit, Naomi Wanjiku. The applicant` deposes that she is in possession of the land which she holds title to as per annexture marked NWK-5 and was not aware of the consent alleged as annexture marked NWK-2 nor did she instruct counsel then on record to enter into the same. 6. The applicant deposes that upon questioning the former lawyer, he allegedly told her that he was arrested by the police and forced to sign the consent. 7. The applicant deposes that the effect of the consent is to have her give out the land to the respondent and she has a good claim; hence prays to be allowed to prosecute her case. 8. The respondent through a replying affidavit sworn by Joseph Kamau Kahungu on 18.12.2025, says that summons to enter appearance were not extracted as per Order 5 Rule 1 of CPR. 9. It is deposed that afterwards, the parties engaged in consultation before the consent guided by their advocates then on record, leading to the consent dated 20.8.2025. 10. The respondent states that after adoption of the mutual consent, he complied with clause No. 2 of the consent by paying Kshs. 100,000/- to the Applicant’s then advocate. 11. The respondent deposes that since filing the suit the Applicant has been ably represented by her former advocates, making her alleged lack of instructions or knowledge misplaced, untrue and means to deceive the court after the consent was fully executed and implemented. 12. The respondent deposes that the said former lawyer had both authority and instructions of the Applicant to sign and appear before court for adoption of the consent. 13. The respondent deposes that there is no contrary demonstration that the said former lawyer lacked instructions or acted contrary to the Applicant’s express instructions in a manner amounting to professional misconduct. 14. The Respondent states that the Applicant has not met the grounds of setting aside a consent judgment such as undue influence, duress, fraud or lack of instructions. 15. The respondent deposes that if set aside, he and his family will be highly prejudiced as the suit land is their family home where they reside. 16. The respondent deposes that the Applicant personally had participated in the negotiations leading to the consent and only gave the former lawyer instructions to draft what they had agreed. 17. The respondent deposes that the application also fails the test of review under order 45 of the CPR; otherwise it is an afterthought, vexatious and lacking merits. 18. By way of a supplementary affidavit, sworn on 6.7.2026, the applicant deposes that the replying affidavit is full of falsehood since she never participated in any such alleged negotiations nor did she authorize her former lawyer to enter into such negotiations; otherwise, there would be correspondences preceding the negotiations which have not been attached herein. 19. The applicant deposes that the consent as influenced by her former lawyer was not entered into voluntarily but at gun point and with no instructions from her. 20. Being the registered owner of the land, the Applicant deposes that she stands to suffer prejudice of the consent as implemented. 21. The law on setting aside a consent judgment was discussed in **Brooke Bond Liebig (T) vs Mallya [1975]EA 266, at p. 269 and in Board of Trustees National Social Security Fund v Micheal Mwalo [2015] eKLR**, Civil Appeal No. 293 of 2014. The court said that a court of law will not interfere with a consent judgment except in circumstances such as would provide for a good ground of barging or rescinding a contract between parties, which include showing that it was obtained by fraud, collusion, there was lack of sufficient material facts or misapprehension or ignorance of material facts or was contrary to the policy of the court. 22. In this application the consent was entered into between the respondent and the Plaintiff’s former lawyer on record. Lawyers of the parties are also officers of the court who are expected to aid the court in attaining its overall objectives of expediting justice to the parties. Equally lawyers are expected not to give outrageous reasons to try to circumvent the implementation of a consent judgment as held in **Nathan Mutua Kolile vs Equity Bank (K) Ltd and another Nakuru ELC NO. 615 of 2023.** 23. A consent Judgment as held in **Flora N. Wasike v Destimo Wamboko, Civil Appeal No. 81 of 1984, [1985] KECA 149 (KLR)** is like a contract between the parties and can only be set aside on such. Grounds such as mistake, fraud or misrepresentation. The Court retains a inherent process to set aside such a consent judgment if there is evidence of such defect which may be vitiating a consent. Ordinarily, advocates retain ostensible authority to compromise a suit on behalf of their clients. 24. A consent judgment becomes a judgment or order of the court once it is adopted by the court, as held in **Edward Acholla v Sogea Satom Kenya Branch, Sogea Satom (France) & Vinci Construction (France), Cause No. 1518 of 2013, [2014] eKLR (Employment and Labour Relations Court at Nairobi) (Ruling delivered on 1 December 2014).** After adoption a consent obtains a contractual effect and can only be set aside also if certain conditions on it remain unfulfilled. 25. Article 159 (2) (c) of the constitution as held in **Geoffrey M Asanyo & Others vs Attorney General, Petition No. 21 of 2015 (2018) KSC15( KLR) (20 November 2018)**, allows parties to compromise matters through ADR including adoption of the terms of settling on the day of the hearing if parties have expressed intentions to resolve the matter amicably in order to put an end to litigation. 26. The court said that appellate court can also adopt a duly entered into between parties, and a court of law is not precluded from allowing a withdrawal of a matter or providing a consent between parties before the delivery of judgment. 27. The court said that the epitome of justice between parties before court is when parties finally, voluntarily come to an amicable settlement of the dispute between them; otherwise a court comes as an impartial arbiter where parties have failed to agree among themselves and should not close the door for the parties to continue negotiating to reach an amicable settlement. 28. The main grounds for orders of review in this application are that the former lawyer had no authority to compromise the suit or instructions to sign the consent, and if he indeed signed it was out of threats, which effectively had the effect of highly prejudicing the applicant’s suit as the registered owner of the land. Demonstration of the ground of setting aside, as alluded above, is that the applicant has to surmount as held in **Intercountries Importers and Exporters Limited Vs Teleposta Pension Scheme Registered Trustees and Others (2019) eKLR.** 29. In **Kenya Commercial Bank Limited vs Specialised Engeneers Company Limited (1982) KLR 485** the court held that a consent order entered into by counsel is binding on all parties to the proceedings unless it is proved it was entered into by fraud or collusion. The court said that a duly instructed advocate has an implied general authority to compromise or settle an action and a client cannot avail himself any limitation by him of that implied authority of his advocate unless such limitation was brought to the attention of the other side. 30. In **Kenya Commercial Bank Limited vs Benjoh Amalgamated Limited and Another, Civil Appeal No. 276 of 1997, (1998) KECA 236 (KLR) (Court of Appeal at Nairobi Judgment delivered on 10th March 1998)** the court said that a solicitor as per **Supreme Court Practice 1976 volume 2 paragraph 2013 page 620** has a general authority to compromise a suit on behalf of his client if he acts bonafide and not contrary to express negative directions and he does so as an agent of the principle. 31. In this application,there is no affidavit for the former lawyer confirming exactly who threatened him, when he was arrested by the police and whether he disclosed that threat to the applicant as soon as the consent was procured through threat. 32. Other than alleging that her former lawyer signed the impugned consent under threat or duress, which are serious allegations, the applicant has not seen it fit to substantiate if the said threats were at the instance of the respondent. In **Gordon Mwatata Mwaringa vs Frankline Mbura Washe Civil Appeal E012 of 2022 (2025) KECA 297 (KLR) (21st February 2025) (Judgment)** the court said that claims of coercion and duress must be particularly pleaded and proven in evidence as required by order 2 rule 10 (1) (a) of the Civil Procedure Rules. The court said that courts do not rewrite contracts but enforce them unless vitiated by coercion, duress, fraud, mistake or misrepresentation which he who alleges must prove to the required standard. 33. In **LTI Kisii Safari Inns Limited and 2 others vs Deutsche Investitions – Und Entwicklungsgeselschaft (DEG) & 4 Others, Civil Appeal No. 72 of 2008 (2011) KECA 1 (KLR) (18th November 2011) (Judgment).** The court said that relevant factors in determining economic duress include weather, the victim protested. 34. In this application there is no evidence that the applicant lodged a complaint with the disciplinary tribunal of the advocates against the former advocates with regard to acting without instructions. 35. The respondent has been categorical that the applicant was personally invited to the negotiations leading to the consent and he is the one who instructed the former counsel on record to reduce the same into writing. 36. The respondent said that he went on to comply with clause 2 of the consent by paying Ksh. 100,000 to the applicant’s counsel on record. The applicant in the supplementary affidavit is silent on all facts including the occupation of the land by the respondent’s family to date. 37. In the circumstance, I find that the applicant has failed to meet the conditions of setting aside the consent judgement; the application is dismissed with costs. 38. Orders accordingly. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON 22ND JULY 2026 THROUGH MICROSOFT TEAMS** **HON. JUSTICE C.K. NZILI** **JUDGE** **IN THE PRESENCE OF:** Court Assistant: Julius Mr. Mugo for the Defendant/Respondent Mr. Gachui for the Plaintiff