https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1064

Rono (Suing as Legal Representative of Monica Jepwambok Ronoh) v Too & 5 others (Civil Application E018 of 2026) [2026] KECA 1064 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1064 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E018 of 2026 PM Gachoka, WK Korir & L Ndolo, JJA May 29, 2026 Between Paula Jeptoo Rono (Suing as Legal Representative of Monica Jepwambok Ronoh) Applicant and Martin Douglas Kipkosgei Too 1st Respondent John Kipruto Too 2nd Respondent Land Settlement Fund Board of Trustees 3rd Respondent County Land Registrar, Kapsabet 4th Respondent County Land Surveyor, Kapsabet 5th Respondent Attorney General 6th Respondent (An application for review and/or setting aside of the consent orders made on 24th November 2025 pending the hearing of intended appeal from the decision of the Environment and Land Court (Ong’ondo J.) dated 27th January 2025) Ruling 1.On 24th November 2025, the Court (Warsame, Mativo & Gachoka, JJ.A.) recorded the following consent order:“When the application dated 7th February 2025 was called out for hearing this morning, learned counsel, Ms. Ochieng was present for the applicant, whereas learned counsel, Mr. Matekwa was in attendance for the 2nd respondent. Learned counsel, Mr. Choge was present for the 1st respondent.By consent of the parties the notice of motion dated 7th February 2025 is compromised in the following terms: 1.The current status quo currently obtaining on the ground shall be maintained. That status is defined to mean that, the 1st respondent is the one currently residing on the land. 2.The 1st respondent will not transfer the title pending the hearing and determination of the appeal. 3.There will be no order as costs.” 2.The meaning of status quo in the consent order is what forms the subject matter of the present application, brought by notice of motion dated 12th February 2026, seeking review and/or setting aside of the consent order. 3.The application is supported by an affidavit sworn by the applicant’s counsel, Elizabeth Akinyi Ochieng, and is premised on the grounds that in the consent order by which the applicant’s application for stay of execution dated 7th February 2025 was compromised, the status quo was erroneously defined to mean that the 1st respondent was in possession, of the suit property, instead of the appellant. 4.The applicant’s counsel depones that the error was occasioned by her mistake or misapprehension of facts on the ground, as she had thought that the 1st respondent was in possession of the suit property. 5.Counsel states that when she shared the signed consent order with the applicant, the latter was shocked to learn of its contents as the applicant has been in possession of the land all along, and the 1st respondent has never taken possession. 6.The 1st respondent, Martin Douglas Kipkosgei opposes the application by his replying affidavit sworn on 10th April 2026. He depones that he is in possession of the suit property, which is registered in his name. 7.Kipkosgei confirms that it was part of the consent that he would not dispose of the property, pending the hearing and determination of the appeal, a condition he has duly observed. 8.The single issue for determination in this application is whether the applicant has satisfied the threshold for setting aside of the consent order. 9.In opposing the application, the 1st respondent relied on the decision in Brooke Bond Liebig vs. Mallya [1975] EA 266 where Mustafa Ag VP stated the following:“…It is well settled that a consent…can be set aside only in certain circumstances, e.g on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract..." 10.The 1st respondent further relied on the following rendition from Setton on Judgments and Orders (7th Edition) Vol 1 at page 124:“Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them... and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court... ; or if the consent was given without sufficient material facts, or in general for a reason which would enable a court to set aside an agreement." 11.The power of an advocate to commit their client was well stated by Harris, J. in Kenya Commercial Bank Ltd vs. Specialised Engineering Co. Ltd [1982] KLR 485 thus:“A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.” 12.What the applicant pursues cannot be said to be an error on the record. This is a consent that was entered freely by the advocates on record. Before recording the consent, the Court asked the parties to confirm who was in occupation and both advocates confirmed that it was the 1st respondent who was in occupation. This is the position that the applicant is trying to run away from. 13.We also note that the affidavit in support of the application is not by the applicant but by her advocate. This goes against the adage that advocates should avoid entering into the arena of evidence. 14.Indeed, if we were to agree with the applicant, we would effectively negate the entire consent freely entered into by the parties. As the 1st respondent rightly points out, a reversal on the interpretation of the status quo could well result in an eviction. 15.That said, the application dated 12th February 2026 fails and is dismissed with costs to the 1st respondent. DATED AND DELIVERED AT ELDORET THIS 29TH DAY OF MAY, 2026.M. GACHOKA C.Arb, FCIArb..............................JUDGE OF APPEALW. KORIR..............................JUDGE OF APPEALL.M. NDOLO..............................JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR.