https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3405

Leitich v Ruto & another (Environment and Land Case 49 of 2014) [2026] KEELC 3405 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEELC 3405 (KLR) Republic of Kenya In the Environment and Land Court at Kericho Environment and Land Case 49 of 2014 LA Omollo, J June 4, 2026 Between Sarah Chepkirui Leitich Plaintiff and Joshua Ruto 1st Defendant Sophia Sang 2nd Defendant Ruling Introduction. 1.This ruling is in respect of the Plaintiff/Applicant’s Notice of Motion application dated 3rd December, 2025. The application seeks the following prayers;a.Spentb.That this Honorable Court be pleased to issued order and set aside the consent filed by advocates of the parties herein dated 22nd September, 2022. (sic)c.That this Honorable Court be pleased to issued order of review of the taxation of the Bill of costs dated 23rd March, 2022 and be pleased to appoint another taxing master for purposes of taxing of the same. (sic) 2.The application is based on the grounds on its face and the supporting affidavit of Sarah Chepkirui Leitich which is sworn on 3rd December, 2025. Factual Background. 3.The Plaintiff/Applicant commenced the present proceedings vide the Plaint dated 5th August, 2014 wherein she sought the following prayers;a.A declaration that plot no. 30 Kabianga market measuring 50feet X 100feet belongs to me the Plaintiff after having purchased the same from Kipkalya .A. Bowen.b.A permanent injunction restraining the three Defendants either jointly or individually from interfering with my ownership/occupation and or use of plot no. 30 Kabianga Market measuring 50 feet X 100feet valued at Kshs. 300,000/=.c.An eviction orders (sic) evicting the three Defendants either individually or jointly from plot no. 30 Kabianga market measuring 50feet X 100feet.d.An order directing the (O.C.S) officer commanding Kericho police station to supervise the said eviction.e.Cost of the suit and interest.f.Any other suitable relief this Honourable Court may deem fit to grant. 4.The Defendants/Respondents filed a Statement of Defence and Counterclaim dated 16th October, 2014 wherein they sought the following orders;a.A declaration that the Defendants are the lawful and legal proprietors of the land parcel Plot No. 30 situate in Kabianga Market.b.A permanent order of injunction against the Plaintiff either by herself, her agents, assigns and or representatives from interfering in any way by either entering into the said parcel of land Plot No. 30 situate in Kabianga Market and or dealing in any way to the detriment of the Defendants.c.Costs. 5.The Court delivered judgement on 15th April, 2021 and issued the following orders;a.A declaration is hereby issued that the Defendants are the lawful owners of the parcel of land known as plot No. 30 situate at Kabianga Market and shall be registered as the owners thereof forthwith.b.A permanent order of injunction is hereby issued against the Plaintiff either by herself, her agents, assigns and or representatives from interfering in any way by either entering into parcel of land plot No. 30 situate in Kabianga Market and or dealing in any way to the detriment of the Defendant’s (sic) occupation of the property.c.The Plaintiff shall bear the costs of the suit and counterclaim. 6.The application under consideration first came up for hearing on 9th December, 2025 when the Court issued directions that it be served upon the Defendants/Respondents. 7.On 18th February, 2026 the Court issued directions that the application be canvassed by way of written submissions. 8.On 14th April, 2026, the application was mentioned to confirm filing of submissions and then reserved for ruling. The Plaintiff/Applicant’s Contention. 9.The Plaintiff/Applicant contends that she appointed the firm of M/S Akinyi and Company Advocates to represent her in the present proceedings. 10.She also contends that on 15th April, 2021, the Court delivered judgement and condemned her to pay costs of the suit and counterclaim. 11.She further contends that the Defendants/Respondents filed the Bill of Costs dated 23rd March, 2022. 12.It is her contention that M/S Akinyi and Company Advocates together with counsel for the Defendants/Respondents entered into a consent with regard to the said bill of costs without her knowledge. 13.It is also her contention that the said bill of costs was coming up for taxation on 13th September, 2022 but the Court did not sit. 14.It is further her contention that the consent dated 23rd March, 2022 was therefore not adopted as an order of the Court. 15.She contends that it is clear from the Court record that the said consent was not adopted as an order of the Court. 16.She also contends that she was not informed of the filing of the said bill of costs and neither was she informed of its taxation. 17.She further contends that the Defendants/Respondents are threatening to attach and sell her property without informing her who issued the warrants of attachment. 18.It is her contention that she is old and senile. She goes on to state that she is apprehensive that she will be deprived off her right to enjoy peaceful possession of her property if there is a delay in the determination of the application under consideration. 19.She ends her deposition by stating that it is in the interest of justice that the application be allowed as prayed. The Defendants/Respondents Response. 20.In response to the application, the Defendants/Respondents filed a Replying Affidavit sworn by their counsel, Frankline Obondo Koko on 16th February, 2026. 21.He deposes that the Plaintiff/Applicant’s application is meant to prevent the Defendants/Respondents from enjoying the fruits of their judgement. 22.He also deposes that on 6th December, 2022, they filed a written consent together with a Certificate of Costs. He goes on to state that the said documents were filed at 12:10 PM. 23.He further deposes that the said documents were filed for purposes of execution which is an administrative process and goes on to state that the said process is curable under Sections 99 and 100 of the Civil Procedure Act (sic). 24.It is his deposition that this Court is functus officio as the bill of costs was compromised and the parties entered into a consent. 25.It is also his deposition that it is too late in the day for the Plaintiff/Applicant to make an application for the Court to consider the Defendants/Respondents Party and Party bill of costs. 26.It is further his deposition that a consent order is synonymous to a contract and/or agreement. He goes on to state that a consent can only be set aside on the grounds of fraud, misrepresentation and/or coercion. 27.He deposes that the Plaintiff/Applicant’s application does not meet the criteria for setting aside a consent order. 28.He also deposes that he is on a without prejudice basis, willing to reconsider the figures set out in the consent if the Plaintiff/Applicant proposes in writing the sum of money she is willing to pay. 29.He ends his deposition by urging the Court to dismiss the Plaintiff/Applicant’s application with costs. Issues for Determination. 30.The Plaintiff/Applicant filed submissions on 23rd March, 2026 while the Defendants/Respondents elected not to file submissions. 31.The Plaintiff/Applicant reiterates the averments in the affidavit in support of the application and submits that since she is over 100 years old and in poor health, the Court should review the costs she is to pay. 32.The Plaintiff/Applicant also submits that auctioneers went to her house and proclaimed her properties while contending that the properties were attached in execution of the orders of this Court. 33.The Plaintiff/Applicant further submits that on a without prejudice basis, she is intending to seek assistance from her grandchildren so that they can help her in paying Kshs. 50,000/=. 34.It is the Plaintiff/Applicant’s submissions that she has exhausted all her finances because of regular medical appointments. 35.It is also the Plaintiff/Applicant’s submissions that she has attached copies of medical treatment notes and rate payment receipts to her submissions. 36.It is further the Plaintiff/Applicant’s submissions that the Defendants/Respondents are in possession of the said parcel of land and yet she is suffering and paying Advocates costs and land rates. 37.She concludes her submissions by urging the Court not to allow the consent as she stands to suffer. Analysis and determination. 38.Having considered the Plaintiff/Applicant’s application, the response thereto and the Plaintiff/Applicant’s submissions, the only issue that arises for determination is whether the Notice of Motion application dated 3rd December, 2025 has merit. 39.The Plaintiff/Applicant contends that the Court delivered judgement in this matter on 15th April, 2021. 40.The Plaintiff/Applicant also contends that she was condemned to pay the costs of the suit and counterclaim. 41.The Plaintiff/Applicant further contends that the Defendants/Respondents filed bill of costs dated 23rd March, 2022. 42.It is the Plaintiff/Applicant’s contention that her advocates, M/S Akinyi & Co. Advocates entered into a consent with Counsel for the Defendants/Respondents which consent is also dated 23rd March, 2022. 43.It is also the Plaintiff/Applicant’s contention that she was not served with the bill of costs and neither was she informed of the said consent. 44.It is further the Plaintiff/Applicant’s contention that from the Court record, the said consent was not adopted as an order of the Court and she seeks that it be set aside. 45.The Defendants/Respondents on the other hand contend that a consent is synonymous to a contract or an agreement which can only be set aside on grounds of fraud, misrepresentation and/or coercion and contend that the Plaintiff/Applicant’s application has not met the said threshold. 46.Before proceeding any further, it is important to note that at the time of delivery of Judgement, the Plaintiff/Applicant was represented by Counsel. 47.The application under consideration has been filed by the Plaintiff/Applicant in her personal capacity. 48.Order 9 Rule 9 of the Civil Procedure Rules provides as follows;“When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the Court—(a)upon an application with notice to all the parties; or(b)upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.” (Emphasis mine) 49.In the judicial decision of Shilako v Anguba (Environment and Land Appeal E038 of 2021) [2026] KEELC 212 (KLR) (21 January 2026) (Ruling) the Court held as follows;“Order 9 Rule 9 of the Civil Procedure Rules requires a party who wishes to act in person where they had been represented by an advocate until after entry of judgment, to obtain leave of Court to act in person.” (Emphasis mine) 50.In the judicial decision of Archer & another v Archer & 2 others [2024] KEELC 7068 (KLR) the Court held that the provisions of Order 9 Rule 9 of the Civil Procedure Rules are mandatory. 51.Since the Plaintiff/Applicant was represented at the time of delivery of the judgement, she ought to have complied with the mandatory provisions of Order 9 Rule 9 of the Civil Procedure Rules which provide that leave to act in person must be sought before filing the application under consideration. Disposition. 52.Taking the foregoing into consideration, I find that the Plaintiff/Applicant’s Notice of Motion application dated 3rd December, 2025 has failed to comply with the mandatory provisions of the law and it is hereby struck out with costs. 53.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 4TH DAY OF JUNE, 2026.L. A. OMOLLOJUDGE.In the presence of: -Sarah Chepkirui Leitich Plaintiff/Applicant (Acting in person).Defendants/Respondents – Absent.Court Assistant: Mr. Joseph Makori