https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3942

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISII** **ELCLA. APPEAL CASE NO. E046 OF 2024** **OBADIAH OMAYIO…….…….…………….APPELLANT** **-VERSUS** **MUSA NCHAGA................................1ST RESPONDENT** **NCHAGA MUSA ...............................2ND RESPONDENT** **MOGIRE MUSA............................... 3RD RESPONDENT** **OSEKO MUSA .................................4TH RESPONDENT** **NCHAGA CHUMA.............................5TH RESPONDENT** ***(An appeal arising from the CM at Kisii ELC 22 of 2018 on the ruling dated 29/10/2024 by Hon. Benard Omwansa)*** **JUDGMENT** 1. The appellant who was the plaintiff in the court below being unhappy with the decision of hon B.O Omwansa then SPM now a chief magistrate which decision set aside the consent dated 16th October 2023 and adopted on 30th October 2023 recorded between the parties. The impugned consent adopted on read thus: 2. Vide application dated 9th September 2024, the Respondents moved the court seeking orders to set aside the impugned consent. After hearing the parties, the learned magistrate allowed the application on 29th October, 2024. 3. The appellant now challenges the said decision on the following grounds: 4. The learned trial magistrate erred in law and fact in allowing the application by misapprehending the applicable law in setting aside the consent orders 5. The trial magistrate erred in law and fact in allowing the application by a stranger challenging the judgment of and or consent of the court. 1. The learned trial magistrate erred in law and fact in assuming the role of the litigants who had not closed their case, thereby arriving at a wrong decision 2. The magistrate erred in law and fact in dismissing the role of the advocate in making the consent order and ignoring perusal of the court record, and thereby arrived at a wrong decision. 3. He therefore prays to be granted orders: 4. That the appeal be allowed and the ruling delivered on 29.10.2024 be set aside and the impugned consent be reinstated, allowing the case to proceed to its logical conclusion as required by law. 5. Costs of the appeal be provided for. 6. Further or other relief deemed just be granted. 7. The appeal was argued by way of written submissions. The appellant, argued that the trial court erred in allowing the respondents’ application to set aside the consent despite the absence of any valid grounds such as fraud, mistake, misrepresentation, or another consent. According to the appellant, the consent order had been properly entered into by advocates representing both parties and was subsequently adopted as an order of the court. 8. The appellant contended that the original judgment delivered in September 2022 was irregular because it was issued before the defendants had closed their case. He pointed to the record showing that as at August 2021 the defendants had not concluded their evidence and that there was also a pending application dated 16 November 2021 in respect of contempt proceedings and maintenance of the status quo. He maintained that these procedural issues justified the consent through which the earlier judgment was set aside and the matter reopened. 9. Further, the appellant argued that the respondents’ application to set aside the consent was brought after an inordinate delay of more than two years and that the allegations of fraud raised by counsel who came on record after judgment were unsupported. He submitted that the trial court failed to consider the established principles governing the setting aside of consent orders and wrongly interfered with a valid agreement between the parties. 10. The appellant therefore urged the appellate court to allow the appeal, set aside the subordinate court’s ruling of 29 October 2024, reinstate the consent order adopted on 30 October 2023, and remit the matter to the trial court for hearing and determination on the merits. He also prayed for costs of the appeal. 11. The respondents oppose the appeal and urge the court to uphold the ruling that set aside the impugned consent order. They argue that the original suit was fully heard, judgment was delivered on the merits, and the decree was subsequently executed. According to them, the appellant is improperly seeking to reopen a concluded matter through a consent entered after judgment and execution, contrary to the principles of finality of litigation and the doctrine of functus officio. 12. The respondents contend that the appellant’s claim that the defence case had not been closed is unfounded. They state that one of the defence witnesses was unable to testify due to illness and later died, making any attempt to reopen the proceedings futile. They further point out that during the trial, the appellant himself urged the court to close the defence case and only raised the issue after an adverse judgment had been delivered. 13. They maintain that the consent relied upon by the appellant was entered without their knowledge or instructions. They argue that Advocate S.O. Omwega lacked authority to compromise their rights after judgment and that no evidence exists showing that they instructed him to set aside or vary the decree. Consequently, they submit that the consent was unauthorized, fraudulent, and void ab initio. 14. The respondents also assert that the appellant never lawfully occupied or purchased the disputed land. They maintain that they acquired their interest through a valid purchase agreement and succession process, while the appellant relied on a defective title and unsupported allegations. In their view, the appellant’s actions were aimed at dispossessing lawful purchasers and abusing the court process. 15. On the legal issues, the respondents submit that the appellant failed to satisfy the requirements for review or reopening of a concluded case under the Civil Procedure Act and Rules. They argue that a consent cannot replace statutory procedures for appeal or review, and that the appellant is merely attempting to remedy weaknesses in his case after losing at trial. They further contend that the burden of proof remained with the appellant and that he cannot use a post-judgment consent to cure evidentiary deficiencies. 16. The respondents therefore pray that the appeal be dismissed with costs, that the impugned consent be declared invalid and incapable of affecting the judgment, and that the judgment and executed decree be affirmed. They also seek protection of the lawful succession process and the interests of the purchasers who are in possession of the land. **Analysis and determination:** 1. I have perused the record of the proceedings in the court below which resulted in the applications one of which is the judgment of this appeal. I have noted that the hearing of the case had proceed up until the testimony of defence witness number 6. On 28th August, 2021 Mr Omwega learned counsel for the Defendants sought adjournment to call the remaining witness. 2. The matter was fixed for further defence hearing on 18th November, 2021 and on this date, counsel informed the court that the witness had not recovered and that the 4th Defendant had been involved in an accident therefore he could not testify. The case was adjourned and directions given for the Defendants to file a response to a contempt application dated 16th November, 2021 filed by the Appellant. 3. On the next date 9th December, 2021, directions was stated for filing of submissions and parties to maintain the status quo. Since Mr Anyona counsel for the Appellant said it was hearing of his application, it is presumed the submissions were in respect of the application. The court set a ruling date of 4th March 2022. 4. The record does not speak to what took place on 4th March, 2022 but there is a judgment dated 27th September, 2022 and delivered on 9th November, 2022. Subsequently, the Appellant filed the application dated 7th March, 2023, seeking orders to review and or set aside the judgment. The grounds for seeking to set aside is because the Defence had not closed their case and second, there was a pending ruling. 5. The application was allowed vide the consent adopted on 16th October 2023. The 1st Respondent then filed the motion dated 9th September, 2024 to set aside this order. This application was allowed which then brings the question whether the learned trial magistrate erred in setting aside the consent order. 6. It is settled in law that a consent order or consent judgment carries a distinct dual character in law. Once recorded by the court, it transitions from a mere agreement between parties into a formal court order. Consequently, it has contractual effect and cannot be set aside or varied lightly. 7. As established in landmark jurisprudence—such as the Court of Appeal decisions in *Brooke Bond Liebig (T) Limited v. Mallya [1975] EA 266* and *Flora N. Wasike v. Destimo Wamboko [1985] eKLR*—a court will not interfere with a consent order except under circumstances that would justify varying or rescinding a contract, or where overriding procedural injustices occur. 8. Was the threshold met via the application dated 9th September, 2024? The Respondents pleaded and submitted that their counsel entered the consent without informing them. The 1st respondent argues the advocate took advantage of his predicament-as his wife was sick and subsequently died. He annexed a copy of the funeral program to corroborate the assertion. 9. Thus, the 1st Respondent does admit he was represented when the consent was adopted as an order of the court. The question of whether the advocate took advantage of his wife's illness and subsequent death relates to the advocate-client relationship that may not be visited on third parties. 10. The matter was pending the hearing of the 4th Defendant’s case. The affidavit in support of the impugned application before the learned magistrate was sworn by the 1st Respondent, who had already given his evidence. There was no affidavit evidence from the 3rd to 4th Respondents to corroborate that they were not contacted by their then-erstwhile advocate, or that the consent was indeed entered without their instruction. 11. In the case of Flora W. Wasike vs Destimo supra, the Court of Appeal stated: **“…Furthermore, Waugh v H B Clifford & Sons [1982] Ch 374, is persuasive authority that a solicitor or counsel would ordinarily have ostensible authority to compromise a suit so far as the opponent is concerned, and Mr Dhanjal would seem to have had such authority in this case. I can detect no valid reasons on the record for saying that there exist grounds such as I have referred to which would justify the setting aside of this judgment as a contract, though this does not preclude the appellant from proceedings by one of the other methods which I have indicated as being open to her.”** 1. Secondly, the proceedings clearly showed the hearing of evidence had not closed when the judgment was rendered. Order 17 Rule 1(2) of the Civil Procedure Rules states that when the court grants an adjournment, it shall give a date for a **further hearing or direction.** There was no direction/order for the closure of the Defendants' case, and as to whether the Defendants were to call further evidence, the hearing process had to be stated as completed before the next step of writing judgment. 2. Hence, there was no proof of the alleged misrepresentation and or fraud upon which the learned magistrate ought to have based his decision to set aside or vary the consent order. The result is my finding that the learned magistrate erred in setting aside the consent merely because the Appellant had closed his case. 3. In conclusion, I hold that the appeal is merited and make the following orders: 4. That the ruling delivered on 29.10.2024 is set aside and the impugned consent be reinstated, allowing the case to proceed to its logical conclusion as required by law. 5. The lower court case MELC 22 of 2018 be mentioned before the Chief Magistrate, Kisii forthwith for directions. 6. Each party to bear their costs of the appeal. **Dated, signed and delivered at Kisii this 25th day of June, 2026.** 1. **OMOLLO** **JUDGE**