https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1538

Mwanzia & 5 others v B2 Yatta Ranching Co-operative Society Limited & 7 others (Civil Appeal 238 of 2020) [2026] KECA 1538 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1538 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 238 of 2020 GV Odunga, SG Kairu & HI Ong'udi, JJA July 31, 2026 Between Cedric Sammy Mwanzia 1st Appellant Muthengi Mulambaya 2nd Appellant Musyoki Syuki 3rd Appellant Nguu Ndonga 4th Appellant Benson Nguthu 5th Appellant Festus Musumba Kakya 6th Appellant and B2 Yatta Ranching Co-operative Society Limited 1st Respondent Kitui County Government 2nd Respondent Joseph Ndeli Musyoka 3rd Respondent Pius Kakono Kau 4th Respondent Geofrey Kisanga Sambi 5th Respondent Beatrice Matheka 6th Respondent Munini Kithami 7th Respondent The Attorney General 8th Respondent (Being an appeal from the Ruling of the Environment and Land Court of Kenya at Nairobi (O. A. Angote, J.) dated 24th April 2020 in ELC Case No. 109 of 2018) Judgment 1.In this interlocutory appeal, the appellants have challenged a ruling delivered by the Environment and Land Court (ELC) at Machakos (O. A. Angote, J.) on 24th April 2020. In that ruling, the court admitted the Attorney General (AG) as a party in the suit; set aside consent orders made on 14th June 2010, 22nd January 2019 and 18th June 2019, which orders had been recorded prior to the joinder of the AG in the suit; and dismissed the appellants’ application for injunction dated 26th July 2019. In the latter application, the appellants had sought an order for preservation of the character of the property known as LR No. 12010 and to restrain all parties to the suit from evicting, destroying homes, carrying out constructions pending the carrying out of a survey that had been ordered by the court on 18th June 2019. 2.The background in brief is that B2 Yatta Ranching Co-operative Society Limited, the 1st respondent, is an amalgamation of two societies, namely B2 Yatta Kanyonyooni Ranching Co-operative Society and B2 Katoteni Ranching Co-operative Society Limited. By Gazette Notices of 10th January 1967, the County Council of Kitui, the 2nd respondent, had leased the properties LR No. 11802 and LR No. 12010 to the said separate Cooperative Societies for terms of 99 years and 20 years respectively. 3.The 1st respondent instituted suit against the 2nd respondent before the High Court at Machakos in January 2008 (later transferred to the ELC) seeking a declaration that it is the sole proprietor of the said properties known, LR No. 11802 and LR No. 12010 on the basis that it became the proprietor thereof upon the merger of the separate Cooperative Societies. The 1st respondent contended that upon amalgamation of the two societies, the lease for 20 years merged into the 99-year lease, and it became the proprietor. 4.In its statement of defence, the 2nd respondent denied the 1st respondent’s claim and maintained that the leases had expired and had never been transferred to the 1st respondent. 5.The appellants applied to be joined in the suit on the basis that they were residing on LR No. 12010 measuring approximately 30,200 acres. They were joined in the suit by an order made on 14th April 2008. The 3rd to 7th respondents also claimed to be residents on the property and were also joined in the suit. 6.On 17th June 2010, the parties recorded a consent order that a portion of LR No. 12010 measuring 300 acres be set apart and surrendered to the Government Department in charge of affairs of the Administration Police. 7.Subsequently, the appellants moved the court with an application seeking orders of injunction to restrain the Administration Police, Kanyonyooni Camp from evicting them and for an order directing the District Surveyor Kitui, to survey and erect beacons to demarcate the 300 acres belonging to the Administration Police. That application was not opposed by the parties and was allowed by an order made on 22nd January 2019. An order was made restraining the 1st respondent and/or the Administration Police, Kanyoonyo Camp from evicting the appellants and/or further digging or excavating a trench within LR 12010 pending ascertainment of the boundary of 300 acres given to the Administration Police vide order of 17th June 2010. It was also ordered that the District Surveyor, Kitui be directed to survey and erect beacons on 300 acres of land belonging to the Administration Police. On 18th June 2019, a further order was made directing the County Surveyor, Kitui to move into the property and excise 300 acres belonging to Administration Police. 8.Enter the Attorney General. By application dated 18th July 2019, the AG, the 8th respondent herein, applied to be joined in the suit on behalf of the Administration Police. He also applied for an order to set aside the orders referred to above on grounds that they were granted without hearing him, and further that the Administration Police is entitled to 5,300 acres and not just the 300 acres of the suit property. 9.There being no objection to the application for joinder, the Attorney General was made a party to the suit in the impugned ruling delivered on 24th April 2020. In the same ruling, the learned Judge of the ELC then pronounced as follows:“63.Indeed, it has now emerged that the Administration Police is saying that it is entitled to 5,300 Acres of the suit land and not 300 Acres. Having not involved the Attorney General while recording the consent order of 14th June 2010, it is my finding that the said consent order is a nullity. Indeed, the orders of the 18th June 2019 allowing the Surveyor to excise 300 acres for the purpose of allocating the same to the Administration Police is null and void. The orders of 14th June 2010, 22nd January 2019 and 18th June 2019 are therefore set aside ex debito justitie.” 10.Regarding the appellants’ application for injunction, the learned Judge held that they had failed to establish a prima facie case with chances of success to warrant an injunctive order and that if their claim was that the National Government was appropriating their land, they could seek compensation and not an injunction. 11.Hence the present appeal. Based on the Memorandum of Appeal, the appellants complain that the learned Judge did not have legal authority, without having been moved, to set aside the consent orders that had been entered into by all the parties and adopted by the court; that in any event there were no grounds for setting aside the consent orders; that there was overwhelming evidence before the court demonstrating that the appellants and their ancestors lived on the land since 1941 and they had therefore established a prima facie case for injunctive relief. 12.The appellants have urged this Court to allow the appeal and reinstate the consent order adopted by the court on 14th June 2010 and the orders of 22nd January and 18th June 2019. They also urge this Court to allow that their application for injunction dated 26th July 2019 which was dismissed by the ELC. 13.We heard the appeal on 23rd March 2026. Learned counsel Mr. Koyyoko appeared for the appellants. At the request of Mr. Koyyoko, the appeal as against the 3rd to 7th respondents was marked as withdrawn. Counsel then proceeded to orally highlight his written submissions dated 5th February 2021. There was no appearance for the 1st, 2nd and 8th respondents despite notice of hearing having been served. 14.Counsel submitted that the learned Judge misdirected himself in setting aside consent orders without any application for setting aside having been made before him; that a consent order can only be set aside if it was obtained through coercion, fraud, misrepresentation, or if it is contrary to court policy and that none of these conditions were present in this case. It was urged that the consent orders, which were agreed upon by all parties, have binding contractual effect and that the court should not re-write or undo. 15.With regard to the rejection by the ELC of the appellants’ application for interlocutory injunction, the appellants argue they had established a prima facie case for an injunction to stop the Administration Police from violently expanding beyond the allocated 300 acres and destroying property; that they provided evidence of demolished homesteads, destroyed crops, and violation of four prior court preservation orders; that their application for an injunction was not opposed and the court should have acted to prevent irreparable harm and contempt of court. 16.It was submitted that the injunctive orders that they had sought were merited because the Administration Police were unilaterally changing the character of the property before the legal proceedings could be determined. 17.Counsel concluded by urging that the ELC did not exercise its discretion judicially and that the appeal should therefore be allowed with costs to the appellants. 18.As we have already stated, this is an interlocutory appeal.Indeed, during the hearing of this appeal, counsel informed the Court that the trial before the ELC was ongoing. We must therefore be guarded in what we say here lest we prejudice the parties before the trial court. 19.With that in mind, counsel indicated that the appellants do not contest the joinder and participation of the AG in the proceedings before the ELC. Their grievance is with the order that set aside the consent orders and the refusal to grant them a temporary injunction they had applied for. Two issues therefore arise for our determination in this appeal. First is whether the learned Judge erred in setting aside the consent orders. The second is whether the judge wrongly exercised his discretion in declining the application for temporary injunction. 20.In setting aside the consent orders and in rejecting the application for temporary injunction, the learned Judge was exercising judicial discretion. The circumstances when this Court may interfere with the exercise of discretion by a judge are limited. As Madan, JA stated in the case of United India Insurance Co Limited Kenindia Insurance Company Limited & Oriental Fire & General Insurance Company Limited vs. East African Underwriters (Kenya) Limited [1985] eKLR:“The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case.The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.” 21.More recently, the legal principle was restated by the Supreme Court of Kenya in the case of Kibira vs. Independent Electoral & Boundaries Commission & 2 Others (Petition 29 of 2018) [2019] KESC 62 (KLR) where it was stated:“… in an appeal from a decision based on an exercise of discretionary powers, an Appellant has to show that the decision was based on a whim, was prejudicial or was capricious. This was as determined in the New Zealand Supreme Court case of Kacem v Bashir [2010] NZSC 112; [2011] 2 NZLR 1 (Kacem)where it was held [paragraph 32]: “In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of a discretion. In that kind of case, the criteria for a successful appeal are stricter:(1)error of law or principle;(2)taking account of irrelevant considerations;(3)failing to take account of a relevant consideration; or(4)the decision is plainly wrong.” 22.Regarding the setting aside of the consent orders, the appellants are correct that as a general principle, consent orders have binding contractual effect and that it is not for the court to undo or re-write contract terms on behalf of the parties. As pronounced by the Court in the case of Flora N. Wasike vs. Destimo Wamboko [1988] eKLR “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.” Vitiating factors would include fraud, mistake, misrepresentation, or illegality. See Kuwinda Rurinja Company Limited vs. Kuwinda Holdings Limited [2019] eKLR). 23.It is common ground that the AG was not a party to the suit when the consent orders in question were entered into and recorded. It is undoubtedly on the basis that the AG was an affected party with an interest in the litigation that the appellants conceded his joinder in the suit. We do not fathom that they would have conceded to his joinder unless satisfied that the AG had an interest in the suit property. Yet, being a party affected by the consent orders, the AG was not privy to them. In the case of City Council of Nairobi vs. Wilfred Kamau Githua t/a Githua Associates & Another [2016] eKLR, this Court endorsed the proposition in Halsbury’s Laws of England, 4th Edn. Vol. 9 (1) Para. 748 that:“…the doctrine of privity of contract is that, as a general rule, at common law a contract cannot confer rights or impose obligations on strangers to it; that is, persons who are not parties to it. The parties to a contract are those persons who reach agreement…” 24.The learned Judge considered that the AG was not a party to the suit nor was he heard when the consent orders were recorded, yet those orders affected him as he claimed entitlement to 5,300 acres of the suit property and not just the 300 acres aforesaid. The appellants have not demonstrated that the learned Judge made an error of law or principle; or that he took account of irrelevant considerations; or that he failed to take account of a relevant consideration; or that the decision is plainly wrong. We do not therefore have any basis for interfering with the decision by the Judge. 25.As to whether the judge wrongly exercised his discretion in declining the application for temporary injunction, the judge took into account the claim by the appellants that they had inhabited the land since 1941; that the appellants conceded in their pleadings that the suit property was trust land; that in those circumstances an order of injunction would have had the effect of stopping the very act the appellants were seeking in their pleadings. The Judge considered that the pictures that were exhibited did not bear dates and that the appellants had not established a prima facie case with a probability of success. The Judge also considered that in the event of the appellants’ suit before the ELC succeeding, they could seek compensation. 26.All these factors, are in our view relevant considerations that weighed in the Judge’s mind consistently with the legal principles in Giella vs. Cassman Brown Company Limited [1973] E.A. 358. Even though the application was not opposed as contended by the appellants, they still had the burden to discharge in making out a case to satisfy the court exercise its discretion in their favour. It may well be that a different court may have reached a different decision but in the absence of demonstration that the exercise of discretion is impeachable on the stated legal principles, we have no basis for interfering with the decision reached. 27.In the result, the appeal fails and is dismissed. The respondents not having participated in the appeal, we make no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026.S. GATEMBU KAIRU, FCIArb, CArb.……………………………………JUDGE OF APPEALG. V. ODUNGA…………………………………JUDGE OF APPEALG. I. ONG’UDI…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.