https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3100

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MILIMANI, NAIROBI** **ELCLC SUIT NO E156 OF 2025** **NANCY WANGARI MAINA………….………………………. PLAINTIFF/APPLICANT** **-VERSUS-** **WILLIAM JOHN WANGA... ………..…………………. DEFENDANT/RESPONDENT** **JULIUS MURICHU GITUARA……………APPLICANT/ PROPOSED 2ND DEFENDANT** **RULING** **Introduction** 1. The Applicant/ has filed the notice of motion application dated 21st October 2025 seeking for the following orders 2. Spent 3. **THAT** the Applicant be joined to these proceedings as the 2nd Defendant. 4. **THAT** this Honourable Court be pleased to set aside, vacate and declare null and void in entirety the purported consent judgement recorded between the Plaintiff/1sf Respondent and the Defendant/2nd Respondent on or about 20th May, 2025 the same having been procured through misrepresentation, concealment of material facts and abuse of the court process. 5. **THAT** pending hearing and determination of this application, this Honourable Court be pleased to issue an order of inhibition and/or stay restraining the Plaintiff/ 1st Respondent, her servants, or agents from selling, transferring, charging, developing or otherwise interfering with the property title number Nairobi Block 100/244 (formerly LR. No. 12672/148, IR. 91134) (hereinafter “the Suit Property”). 6. **THAT** upon joinder, the Applicant be granted liberty to file appropriate pleadings and affidavits in defence of his proprietary rights. 7. Costs of the suit. 8. The applicant was premised on grounds interalia that the plaintiff herein misled the court by concealing facts that the applicant has a registered interest in the suit property. That the matter proceeded without his involvement despite the applicant being aware of Milimani Case E175 of 2025 Julius Murichu Gituara Vs Nancy Wangari Maina a matter as between herself and the applicant over the suit property pending determination. 9. The applicant argued that his exclusion from the suit and consent being in existence is an abuse of the judicial process and hence need for him to be enjoined as a party and setting aside of the consent hence this application. **Reply** 1. The defendant opposed the application vide a replying affidavit sworn on the 6th February 2026.He deponed to have been the legally registered owner of the suit property and had then sold it to the plaintiff. That the applicant had not disclosed to him any interest in the suit property and the claims of fraud being brought forth by the applicant had not been substantiated. He deponed that for the claims of fraud to suffice, the applicant has to demonstrated that he knew of his claims in the suit property, that he knew that the plaintiff was aware of his claims in the property and had failed to disclose to the court the information. He deponded that the applicant failing to demonstrate fraud, was not entitled to having the consent order set aside. The application was canvassed by way of written submissions with the applicant filing submissions dated 14th April 2026 whereas the defendant/2nd respondent filed submissions dated 6th March 2026. **Applicant’s submissions.** 1. Counsel submitted on the following issues Whether the consent judgement obtained through non-disclosure can be allowed to stand. On this it was submitted that the law makes it clear that where a consent judgement has been entered into through non-disclosure of material facts it is to be set aside. Counsel relied on the case of **Intercounties Importers and Exporters Limited Vs Teleposta Pension Scheme Trustees & 5 Others (2019) eKLR** He submitted that having demonstrated the plaintiff’s knowledge that he had interest in the suit property and the existence of a parallel matter on the same title was enough evidence of non-disclosure Whether the court is functus officio Counsel argued that the order having been obtained through fraud the doctrine of functus officio could not be invoked placing reliance on the case of **Merry Beach Limited vs Attorney General & 18 Others [2018] eKLR** where the court gave exceptional circumstances for a when a party can be enjoined after judgement has been entered and setting aside any orders thereto. Whether the applicant had met the threshold for joinder Counsel submitted that the court has the discretion of enjoining a party who it deems necessary to help adjudicate on the issues and the applicant being the proprietor of the suit property was a necessary party. **2nd Respondent’s submissions** Counsel reiterated the contents in the replying affidavit that the applicant had not demonstrated valid grounds for setting aside of the consent judgement relying on the case of **Board of Trustees National Social Security Fund Vs Michael Mwalo (2015) eKLR.** Counsel also submitted that the court was functus officio and cannot entertain the application **Analysis and determination** 1. Upon considering the Application, the replying affidavit and the pleadings herein the following issues commend themselves for determination: 2. Whether the applicant can be enjoined in the proceedings 3. Whether the consent judgement should be set aside Order 1 Rule 10(2) of the Civil Procedure Rules provides that: “*The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”* 1. On the issue of joinder, I agree with the submissions made by the applicant and the cited authorities, and I concur with that view. The Court in **Gladys Nduku Nthuki Vs Letshego Kenya Limited; Mueni Charles Maingi (Intended Plaintiff) [2022] KEHC 2227 (KLR)** reiterated the longstanding test for joinder, as established in **Kingori Vs Chege** & 3 Others [2002] 2 KLR 243, outlining the factors to consider in applications for joinder of parties. These factors include whether the party is necessary and proper, and whether their participation would avoid the multiplicity of proceedings. The Court held that when a party is directly affected by a decree, the court should exercise its discretion in favor of including them. Additionally, the Court referenced the decision of the Court of Appeal in Tanzania in Tang Gas Distributors Ltd v Said & Others [2014] EA 448, where the Court stated that:“ *the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying; that the joinder may be done either before, or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing more to be done that the rule becomes inapplicable; and that a party can even be added at the appellate stage.”* I agree with the applicants' submissions and the cited precedent regarding joinder after judgment. The Court of Appeal in **Rose Wakanyi Karanja & 3 others Vs Geoffrey Chege Kirundi & another; Everton Coal Enterprises Limited (Interested Party) [2020] KECA 616 (KLR)** held: “However, there are exceptional circumstances that could justify a court to enjoin a party even after judgment has been delivered. One such exception is where a matter has been determined and adverse orders issued against a party who was neither given notice of the suit nor heard on the issue in dispute as was the case in this appeal.” 1. The applicant contends that he is in a substantially similar position, having been deliberately excluded from the challenged Consent Order despite his equitable interests in the land. Even if the Consent Order is considered final the fraudulent circumstances surrounding its enforcement such as material nondisclosure of an existing suit over the same suit property, misrepresentation, and the exclusion of the applicant who holds a valid title conflicts with this Court's policy of giving each party the right to be heard and this justifies reopening the case. 2. To the extent that a case can be reopened at any point, I agree with the applicants. What I discuss next is whether the intended applicants can be joined in these proceedings with an order for offsetting the consent on record. 3. In this case, the applicant has attached a certificate of title that has the suit property registered in his name, which title has not been challenged by the respondents .For all intent and purposes, a certificate of title held by a person is considered as prima facie evidence that the holder is the legally registered owner as in section Section 26 (1) of the Land Registration Act which states as follows:*“The Certificate of Title issued by the Registrar upon registration … shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner… and the title of that proprietor shall not be subject to challenge except –* 4. *On the ground of fraud or misrepresentation to which the person is proved to be a party; or* 5. *Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”* Having established the applicant’s proprietary rights over the suit property, it therefore follows that his involvement in the suit property will be vital in establishing the plaintiff’s and 1st respondent’s interest in the property 1. I agree with the Applicant’s that the legal position on the variation of a consent judgment is well established. In **Samuel Mbugua Ikumbu Vs Barclays Bank of Kenya Limited [2015] KECA 390 (KLR),** the Court of Appeal in that case held that: “The law on variation of a consent judgment is now settled. The variation of a consent judgment can only be on grounds that would allow for a contract to be vitiated. These grounds include but are not limited to fraud, collusion, illegality, mistake, an agreement being contrary to the policy of the court, absence of sufficient material facts and ignorance of material facts. Hancox JA (as he then was) in the case of **Flora Wasike Vs Destimo Wamboko (1982 -1988)1 KAR 625**, said in his judgment at page 626 -"*It is now settled law that a consent judgement 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." This Court in the case of Brooke Bond Liebig v. Mallya 1975 E.A. 266 held: - “A consent judgment may only be set aside for fraud collusion, or for any reason which would enable the court to set aside an agreement.”* The applicant has produced evidence to the effect the plaintiff herein knew of his interests in the suit property by attaching a demand letter dated 2nd April 2025 detailing the same which demand letter was responded to by the plaintiff’s advocate. The applicant has further pointed to the existence of ELC E175 OF 2025 where the plaintiff herein has been sued over the same parcel of land. This evidence has not been controverted by the respondents. The defendant/2nd respondent indicates that the applicant has not proven that he knew of the said interest nor the impending suit. In my view as long as the plaintiff was aware of the applicant’s interest is reason enough as he being the initiator of the current suit should have brought to the court the attention of another third party seeking proprietary rights. This I hold to be vital information that should have been made available to this court before entering into a consent judgement. This non-disclosure is enough reason to set aside the consent order. **Final disposition** The upshot of the matter is that the Application is disposed in the following terms: 1. The applicant is granted leave to be enjoined to this proceeding as a defendant and file his pleadings. 2. The consent order dated 20th May 2025 is hereby set aside and on order is hereby issued that there shall be no interference of the suit property by either parties pending hearing and determination of the application. 3. Costs shall be in the cause. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **21st** dayof **May 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Ms. Kanyika** for 2nd Applicant Applicant **N/A** for the Respondent **Philomena W .** Court Assistant