https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8625

Odongo & 2 others v Atundo & another (Civil Appeal 68 & 69 of 2014 (Consolidated)) [2026] KEHC 8625 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEHC 8625 (KLR) Republic of Kenya In the High Court at Kakamega Civil Appeal 68 & 69 of 2014 (Consolidated) S Mbungi, J June 18, 2026 Between Godfrey Odongo 1st Appellant Elizabeth Avumba 2nd Appellant David Ashioya 3rd Appellant and Margret Anyango Atundo Respondent and Elisabeth Auma Kapule Intended Interested Party Ruling 1.Vide a notice of motion application dated 15th May 2025, the Applicant/ interested party Elisabeth Auma Kapule moved this court seeking the following orders;a.That the application be certified as urgent and be heard on a priority basis (spent)b.That the applicant be joined on this suit as an interested partyc.That the consent orders granted on 12/7/2024 be set aside. 2.The application was supported by the affidavit of Elisabeth Kapule, who asserts that following this court’s order dated 22/2/2023, for the land parcel number Bukhayo/Kisoko/3217 was advertised in the newspaper by NIKI Auctioneers. She applied for the auction and, through a public auction conducted on 2/5/2023, she was the highest bidder and bought the parcel number Bukhayo/Kisoko/3217, paying the full purchase price. 3.She acknowledged being issued with the vesting order vide Kakamega Chief Magistrate ELC Misc App No. E064 of 2023 on 9/3/2023; however, the 1st and 2nd appellants refused to produce the title deed to effect the transfer process. However, despite numerous follow-ups with the Land Registrar to process the order without the title deed, it has been in vain. 4.She further claimed that she later discovered that the land had been transferred by the 1st and the 2nd appellants to Vivian Musungu Egesaa on 28/8/2024 after the Land Registrar received the order on 14/8/2024 and that the Land Registrar had already registered a consent order dated 12/7/2024 between the respondent, 1st appellant, and 2nd appellant vacating the public auction and the vesting order. 5.According to the applicant, the parties claimed that the public auction and vesting order had been obtained fraudulently, although she claimed that they lacked the locus standi to set aside the public auction and the vesting orders, and further that the said process could not be set aside by a consent order, and further that she had not been issued with any notice to that effect. 6.She opined that the consent was obtained fraudulently and issued unlawfully, as this court lacked the jurisdiction to set aside orders given by another court, as it was not sitting as an appellant court. 7.The applicant asserts that the public auction cannot be set aside without her involvement and that of the auctioneers, and further that the appellants have already transferred the land to a 3rd party, being their daughter, which is a matter for a different court. 8.She prays that the application be allowed as it has merit. 9.On 2nd September 2025, the respondents filed their grounds of opposition by asserting that the application is an afterthought, stating that the applicant is not entitled to the orders sought as they are not a party to the case. The application is frivolous, vexatious, and an abuse of the court process. 10.They further filed a notice of preliminary objection on the application by stating that the application is subjudice Busia CMC ELC Case No. E164 of 2024 is due for mention on 18/11/2025, where the parties are substantially the same, they are litigating on the same title, and the dispute is on the sale of LR No. Bukhayo/Kisoko/3217, which are similar to the application before this court. 11.In their replying affidavit dated 7th October 2025, the Respondents opined that the applicant cannot seek the consent judgment and orders to be set aside as she was not a party and hence has no privity. 12.He avers that the consent was adopted as an order of the court and further that the judgment addressed all the pending issues, being that there was no appeal, as it was compromised, and that they were the only ones who could reinstate the appeal, and that the applicant is a stranger to the case and not a party in the appeal, which was not admitted. 13.They are of the opinion that the interested party can only be enjoined in an ongoing suit and not a concluded one, where the parties had already agreed on the issues. 14.According to the Respondent, the application is Subjudice Busia CMC ELC No. 164 of 2024, hence this court lacks the jurisdiction in the matter as the matters at the Busia ELC matter are the same and the Busia suit had been filed earlier than this application. Analysis and Determination 15.I have considered the application, responses to the application, the affidavits, grounds of opposition, preliminary objection, and the submissions filed and find the following issues for determination;i.Whether the Applicant/Intended Interested Party has demonstrated sufficient interest to warrant joinder in these proceedings.ii.Whether this Court can set aside the consent orders dated 12th July 2024 in the circumstances. 16.Order 1 rule 10(2) of the Civil Procedure Rules provides that the court may at any stage of the proceedings include a party whose presence is necessary to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. 17.The Supreme Court in Francis K. Muruatetu & Another v Republic & 5 Others (2016) eKLR stated the elements for joinder of an interested party as follows: a clear, identifiable, and proximate personal stake in the matter; demonstrable prejudice if not joined; and relevant submissions that are not merely duplicative. 18.In the instant case, it was stated that the Applicant had bought the suit property (Bukhayo/Kisoko/3217) at a public auction on 2nd May 2023, following this court's order of 22nd February 2023. She claimed that she had paid the full purchase price and obtained a vesting order from the Magistrate's Court in Kakamega in ELC Misc App No. E064 of 2023. She asserts that the subsequent consent orders and transfer to a third party, whom she alleged was the appellants' daughter, directly prejudice her proprietary interest acquired through a court order. 19.In response, the respondent opposed the said application by claiming that there cannot be a joinder as the matter was already completed via consent, and since the applicant was not privy to the consent, then she is a stranger to the proceedings. 20.The Supreme Court in Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR stated that an interested party is a person who has a stake in proceedings, though not initially a party, and whose presence is necessary for the complete adjudication of the issues before the court. The apex court held that"An interested party has a stake in the proceedings, though he or she was not party to the cause ab initio. One who will be affected by the decision of the court when it is made, either way." 21.This court notes that the applicant has demonstrated that she claims an interest in the suit property, as she had purchased the property through a public auction; however, that alone is not sufficient to warrant joinder in the peculiar circumstances of this case. 22.The record reveals that this matter was before this court as an appeal. Subsequently, the parties to the appeal voluntarily compromised the appeal through a consent dated 12th July 2024. The consent was adopted as an order of the court, thereby bringing the appeal to an end. 23.Once parties compromise an appeal through a consent and the same is adopted by the court, there ceases to be an ongoing dispute between the parties. The proceedings become concluded unless the consent is lawfully challenged by parties who were privy thereto, having considered the grounds for setting aside the consent orders. 24.It is noteworthy that the applicant was never a party to the original proceedings giving rise to the appeal, nor was she a party to the appeal itself. She was equally not privy to the consent that culminated in the disposal of the appeal. 25.An interested party can only be joined to ongoing proceedings in which there exists an ongoing controversy requiring adjudication. Joinder cannot ordinarily be used to reopen proceedings that have already been concluded by a consent of the parties. 26.In Communications Commission of Kenya & 4 Others v Royal Media Services Ltd & 7 Others [2014] eKLR, the Supreme Court emphasized that joinder is intended to facilitate complete adjudication of issues in a pending matter and not to revive disputes that have already been conclusively determined. 27.The applicant's grievance appears to arise from subsequent events touching on the execution process, the public auction, the vesting order, and the subsequent transfer of the property to a third party. Those matters were never issues for determination in the appeal. 28.The applicant is therefore seeking, through the avenue of joinder, to introduce new causes of action and disputes that were not before this court when the appeal was still in place. 29.This court cannot permit appellate proceedings that have already been concluded to be transformed into a forum for litigating fresh disputes between persons who were not parties to the appeal. 30.The proper recourse available to the applicant lies in instituting substantive proceedings before a court of competent jurisdiction, where her alleged proprietary rights, the validity of the auction, the vesting order, and the subsequent transfer can be fully ventilated and determined upon evidence. 31.Consequently, I find that the applicant has not established a basis upon which she can be joined as an interested party at this appellate stage. 32.On the second issue of whether this court should set aside the consent orders dated 12th July 2024. The court in the case of Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266, stated that,“A consent judgment can only be set aside on grounds which would justify setting aside a contract, for example, fraud, mistake, or misrepresentation." 33.The Court of Appeal in Flora N Wasike v Destimo Wamboko [1988] eKLR, stated that,"It is now settled law that a consent judgment can only be set aside on grounds which would justify setting aside a contract." 34.Courts do not take lightly the request to set aside a consent order by parties, as it is an order that was freely negotiated and entered into by the parties involved. Even before I address the issues that would lead to setting aside the consent order. I note that the applicant herein was not a party to the appeal and hence was not privy to the parties' consent. 35.The applicant neither participated in the negotiations leading to the consent nor executed the consent. She cannot, therefore, challenge the consent. 36.More importantly, this court notes that the applicant's complaint is not that the consent adversely settled issues in which she was a litigant before this court. Rather, she complains that the consent allegedly affected rights she claims under a separate auction process and vesting order. 37.Such a complaint raises substantive questions regarding property rights and alleged fraud. Those are matters that require a substantive suit where all affected parties, including the alleged transferee, the Land Registrar, the auctioneers, and any other relevant parties, can be heard. 38.This court cannot convert a concluded appeal into a new trial for determining the contested issues raised by the applicant on the issue of ownership, fraud, and enforcement of vesting orders. 39.In any event, the applicant cannot seek to set aside a consent to which she was not privy while simultaneously seeking joinder after the proceedings have already been concluded. 40.I therefore find that the prayer seeking the setting aside of the consent orders dated 12th July 2024 is misconceived. 41.In conclusion, it’s this court's finding that ;a)The appeal was conclusively compromised through the consent dated 12th July 2024.b)The applicant was not a party to the appeal and was not privy to the consent order.c)Joinder of an interested party cannot be used to reopen or revive appellate proceedings that have already been concluded.d)The grievances raised by the applicant concerning the public auction, vesting order, transfer of the property, and alleged fraud constitute a distinct cause of action which ought to be pursued through a substantive suit before a court of competent jurisdiction. 42.Accordingly, the notice of motion dated 15th May 2025 is devoid of merit and is hereby dismissed in its entirety. 43.The applicant is at liberty to pursue the issues she has raised through a fresh substantive suit against the persons she believes infringed those rights. 44.Costs of the application shall be borne by the applicant. 45.Right of appeal explained. 46.The file is closed. 45.It is so ordered. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 18TH DAY OF JUNE, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Velma/Zilda.Parties absent.Counsels absent.Court Assistant to upload the Ruling on the CTS forthwith.