https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3353

Republic v Kiriwo & 8 others (Environment and Land Judicial Review Case 8 of 2024) [2026] KEELC 3353 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELC 3353 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Judicial Review Case 8 of 2024 FO Nyagaka, J May 28, 2026 Between Republic Applicant and Elizaphan Ager Kiriwo Interested Party and The District Land Adjudication Officer Rachuonyo Respondent and Griffins Perprdito Otieno 1st Interested Party Lawrence Obonyo Obinju 2nd Interested Party Michael Amula Owino 3rd Interested Party Joseph Ado Obwola 4th Interested Party Joseph Bonondi Rowa 5th Interested Party Solomon Osodo 6th Interested Party County Government Of Homabay 7th Interested Party Ruling Introduction 1.The 1st Interested Party and the Proposed Interested Party who was named in the application as the 2nd Interested Party, filed the instant application dated 29th November, 2023. They brought it under sections 1A, 1B, 3A and 63 of the Civil Procedure Act, Order 9 Rule 9 and Order 51 of the Civil Procedure Rules, and Articles 47, 50 and 159 of the Constitution. They sought the following orders:1.…Spent.2.…Spent.3.That the Court be pleased to join Griffins Perprodito, Lawrence Obonyo Obinju, Joseph Ado Obwola, Michael Amula Owino As Interested Parties Representing Kakdhimu Clan.4.The Court be pleased to set aside, vacate or nullify the consent order issued on the 6th August, 2013.5.…Spent.6.Costs of and incidental to this Application together with interests and any other order that the Honourable court deems fit and just to grant in the circumstances. 2.The Application was based on grounds set out on the face of the application and supported by the Affidavits of Elizaphan Ager Kirowo And Griffins Perprodito Otieno sworn on 29th, November, 2023 the 1st and 2nd Interested parties respectively. 3.The grounds of the application were that the consent impugned was entered without the permission, authority or agreement of the Interested Party. It had affected over 500 people who did not participate in the court case and represented (sic). There was no public participation before the consent was entered into. The firm of S. Nyauke and Company Advocates did not have authority to enter into the consent. The consent entered into included a foreign party called Governor of Homa Bay County. The firm of S. O. Nyauke and Company Advocates could not represent the Governor of Homa Bay County and the Interested Party whose interests were diametrically opposed. The consent was obtained by fraud and misrepresentation and therefore illegal ab initio. The Interested Party and the 2nd, 3rd, 4th and 5th Interested Parties (sic) were not consulted and (did not) give authority to Nyauke and Company Advocates to sign off their land parcels. The consent had deprived two locations, namely, Kakdhimu East and Kakdhimu West a total of 532 acres. 4.In the supporting Affidavit sworn by the Interested Party on an unknown date before one Nyagaka Muma Advocate and Commissioner for Oaths, the Interested Party stated that in October, 2023 he noticed activities on the suit parcels covering Kakdhimu East And Kakdhimu West Locations. He deposed further that he then went to his advocate S. O. Nyauke to inquire what had happened, of which he didn’t get a proper answer. He further stated that he then engaged the firm of Moa Advocates LLP who informed him that there was a consent surrendering the land to the 8th Interested Party. 5.He went on to state that sometimes in 2011 his then advocate S.O. Nyauke had sent him a consent to sign which he declined. He added that neither himself nor his then Advocate had any authority to enter into the consent. He stated that signing the consent meant giving away 532 hectares and compromising the livelihood of 5000 people being the Kakdimu Clan. 6.He also stated that the 8th Interested Party was not a party to the suit. Therefore, the entire consent was void ab initio. He deponed further, at paragraph 15 of Affidavit, that there was an agreement reached by their people, handing over the land to the 8th interested party. The 1st interested party also stated that their people were currently waiting for the Land Adjudication Officer to publish objections to enable them get their titles. 7.The 2nd Interested Party (sic), who was one of the proposed Interested Parties, stated that they had owned the suit parcel since 1931, which they inherited from their great grandfathers. He stated that a declaration giving them the land was issued on 28th October, 2008. He further stated that on 24th June, 2009 the District Land Adjudication Officer for Homabay, Ndhiwa and Rachuonyo gave the go ahead for the land adjudication process to commence. 8.He stated that despite the Notice having been sent to the 8th Interested Party, not all of the members of the clan managed to register their objections and that they (who objected) never got any response from the Land Adjudication Officer. 9.The 2nd Interested Party (sic) swore an affidavit on 29th September 2023. He deponed that he was authorized to swear the affidavit. In support of the deposition he attached as GPO1 a copy of the Authority. He added that they were praying that they be allowed to come on record as Interested Parties to challenge the consent entered (into) without their knowledge or permission. That they had had the parcels of land since 1931, having inherited them from their grandfathers. The Riwa Land Adjudication Section was about 532 acres with families of about 5000 people. The declaration was made on 28th October 2008. He attached a GPO 2 a copy of the Declaration. He stated further that on 24th June 2009 the District Land Adjudication Officer for Homabay, Ndhiwa and Rachounyo gave permission to the land adjudication to start a process of adjudicating their parcels. He evidenced that by a copy of a letter dated 24th June 2009. On 30th November 2009 the District Commissioner gave permission the land Adjudication to start the process of adjudicating their parcels. He also evidenced it by a letter. Upon the declaration the Land Adjudication Office visited the parcels of land and adjudicated them as per the Adjudication List. 10.On 20th August 2013 the Land Adjudication Officer gave a notice that the land adjudication was complete. While the notice was copied to the County Government of Homa Bay it was not “notoriously” displayed so that they could go and register their objections in line with the Land Adjudication Act. He attached as GPO 5 a copy of the letter dated 20th August 2013. 11.He deponed further that notwithstanding the secrecy of the said letter some of their people filed objections. He attached and marked GPO6 a letter dated 17th October 2013. The Land Adjudication Officer never got back to them to state what happened to their objections. On 12th September 2023 they saw strange activities on the land. He wrote a letter to the Adjudication officer asking for issuance of title deeds to them. He annexed as GPO 7 a copy of the letter to evidence that. On or about October 2023 he noticed that there were activities going on the parcels of land in Kakdhimu East and Kakdhimu West locations which parcels were the subject of the instant case. He attached a number of photographs to evidence that activity. Because of the intensity of activities, the elders of Kakdhimu clan gathered at the home of Elizaphan Ager Kirowo to find out what was going on with their parcels of land which were for adjudication. He attached as GPO 8 a copy of the consent. Mr. Elizaphan Ager told them that he could not remember that there was any agreement and that he was aware that the case was still pending in court since his advocate never informed him about its conclusion. 12.They then instructed the farmer of MOA Advocates to find out what was happening. Their current Advocates informed them that on 31st October 2023 he proceeded to Kisii Law Courts and confirmed there was a consent surrendering the to the County Government of Homa Bay. He attached as GPO-9 a copy of the court Order. 13.He deposed further that the firm of S. O. Nyauke Advocate had absolutely no authority to enter into the consent giving away the 532 acres which was owned by different individuals. It did not have authority to enter into a consent compromising their livelihood of over 5000 people. They never sat down with the Governor of Homa Bay County and agree to give their land to the County. The County Government of Homabay was not a party to the suit and therefore the entire consent was void of initio. Up to the time of swearing the Affidavit, the people were waiting for the land adjudication officer to publish objections so that they could have their title deeds. There was no agreement reached by the people handing over the land to the County Government. No activity should proceed on the land because they were going to be prejudiced by them. The constitutional principle demanded that before such a consent could be entered there must be public participation. Even as late as 27th July 2023 there was a meeting with the County Government and the land adjudication officials wherein they (people) went to demand title deeds. He evidenced that by an annexture GPO10. There was no mention by the County Government of Homabay officials or the land Adjudication officer that their private lands had been handed over to them. He prayed for the orders sought and stated that the application was made in good faith and without undue delay. 14.The Ex Parte Applicant filed his Replying Affidavit sworn on 16th September, 2025. He the reiterated the Applicants’ contention and averred that the consent was entered into without his permission. 15.He added that the 8th interested party was fraudulently made a party to the consent which consent was illegal. 16.He went on to aver that the firm of S. O. Nyauke & Co. Advocates could not have represented both the Applicant and the 8th interested party. He further averred that he never had a meeting with the 8th interested party or with any representative from Nyauke & Co. Advocates prior to execution of the consent. 17.He added that whereas the entire property was 500 acres, through the consent, only 160 acres was registered in the 8th interested party’s name and that they are unable to confirm to whom the rest of the 340 acres was registered to. 18.The ex parte applicant averred that the trial court was mislead into giving an unjust decree through adoption of a consent he never participated in. 19.The 8th interested party also filed its replying affidavit sworn on 19th October, 2025 by George Illah, its Legal Officer. He averred that the consent order dated 6th August, 2013 issued in JR Cause No. 30 of 2011 determined the matter finally and settled the dispute. 20.He added that parties were then directed to pursue the Adjudication process. He averred that this Court lacked the jurisdiction pursuant to Sections 26, 27, 28, 29 and 30 of the Land Adjudication Act and Sections 5 and 8(3) of the Law Reform Act. 21.He averred that the consent order could only be set aside on appeal to the Court of Appeal. He relied on the case of Ransa Company Ltd v Manga Francesco & 2 Others [2015] eKLR. 22.He further averred that the present application was incompetent as it is premised on allegations of fraud that remain unsubstantiated. He added that the same was not within the purview of the judicial review court. 23.He averred that in line with Article 63(3) of the Constitution, unregistered community land is to be held in trust by the County Government on behalf of the communities. 24.He also averred that the 1st to 7th Interested Parties and the Ex Parte Applicant did not raise any objection within the confines of the Land Adjudication Act and thus lacked capacity to sue or object to the same. 25.He added that this court ceased to have jurisdiction upon the adoption of the consent dated 22nd July, 2013. He averred that prior to the Court order dated 6th August, 2013, the adjudication process was ongoing and public participation was done as well as determination of the objection proceedings. 26.He went on to aver that the 1st - 7th interested party and the ex parte applicant never raised an objection nor appealed to the Minister of Lands within the statutory period ending on 18th December, 2013 prior to issuance of the letter of finality. 27.He further averred that the purpose of the consent dated 23rd July, 2013 and the order dated 6th August, 2013 was to withdraw the suit and allow the adjudication process continue. He added that there was no evidence that the 1st-7th interested parties represented the 500 persons. 28.He averred that the Applicants had not made any application to first reinstate the suit and therefore the instant application was incompetent. He urged the court to dismiss the application with costs. Submissions 29.Learned counsel for the Ex Parte Applicant filed his Submissions dated 26th October, 2025 where he identified the following issues for determination:i.Whether the consent was obtained illegally, fraudulently and maliciously.ii.Whether this court has powers to review its own decree and/or orders.iii.Who bears the costs of the suit? 30.On the first issue, while submitting in the affirmative, heargued that the consent order dated 22nd July 2013 which surrendered the suit property to the 8th interested party was made vide a consent which was entered into without the express and/or implied permission of all parties. 31.He further submitted that the suit property being community land, there was no public participation conducted before the consent was entered into. She relied on the case of Osman & 164 others (Suing on Their Behalf and Behalf of Residents of Merti Sub-County, Chari, and Cherab Wards in Isiolo County) V Northern Rangelands Trust & 8 others [2025] eKLR. 32.She went on to submit that the firm of Nyauke & Co lacked the authority to enter into the consent since the 8th interested party was not a party in the matter and further Mr. Nyauke and his clients were complete strangers to the matter. She relied on the case of Gulf African Bank Limited V Realtek (K) Limited & 5 others (Civil Case E101 of 2018) [2025] eKLR. 33.On the second issue, she relied on Order 45 of the Civil Procedure Rules and submitted that there was an error apparent on the face of the record. 34.She argued that the consent was entered into by a non-party to the matter through the inclusion of a strange firm and a strange party to the consent thus resulting to an error apparent on the face of the record. She relied on the case of Fredrick Otieno Outa V Jared Odoyo Okello & 3 Others [2017] eKLR. 35.On the final issue of costs, she relied on Section 27 of the Civil Procedure Act and the case of Mwazuzu (For his own and on behalf of all persons living on LR 4752) v Maruma Holdings Limited & another [2025] eKLR. Counsel urged the court to award the Ex Parte Applicant costs. 36.Then, learned counsel for the 8th Interested Party filed his Amended Submissions dated 20th November, 2025 where he identified the following issues for determination:a.Whether this court lacks jurisdiction to hear and determine the 1st- 7th Interested Parties Application dated 29th November 2023 by dint of the MANDATORY provisions of the Land Adjudication Act.b.Whether this court lacks jurisdiction to hear and determine the 1st- 7th Interested Parties Application dated 29th November 2023 by dint of the provisions of section 8 of the Law Reform Act and Order 53 of the Civil Procedure Rules.c.Whether the 1st-7th Interested Parties have provided particularized or provided proof of forgery allegations as required in law.d.Whether the County Government (8th Interested Party) can in law own public land for the benefit of the community.e.Whether the1st -7th Interested Parties Application dated 29th November 2023 is merited. 37.On the first issue, it was his contention that the Court lacks jurisdiction since the 1st -7th Interested Parties failed to exhaust the mandatory dispute resolution mechanisms provided under Sections 26, 27, 28, 29 and 30 of the Land Adjudication Act. He submitted that specifically, Section 29 of the Act allows any person aggrieved by an objection determination to appeal to the Minister within 60 days, a step the Applicants allegedly never took. 38.He relied on the case of Bhaijee & another V Nondi & another (Civil Appeal 139 of 2019) and Mohamed Ahamed Khalid V Director of Land Adjudication & 2 others [2013] eKLR. 39.On the second issue, he submitted that the court was functus officio since the matter was settled by a consent Order on 6th August, 2013. He argued that under the Law Reform Act, the High Court cannot review or set aside its own final orders in a Judicial Review but that any such grievance must be addressed via an appeal to the Court of Appeal. 40.He relied on Section 8 of the Law Reform Act (Cap 26) and Order 53 of the Civil Procedure Rules and the case of Ransa Company Ltd V Manca Francesco & 2 Others [2015] eKLR. 41.On the third issue, he submitted that the applicants failed to provide particularized proof or forensic evidence to support their claims of forgery. He relied on the case of Elizabeth Kameme Ndolo V Matata Ndolo (Civil Appeal No. 128 of 1995) UR. 42.On the fifth issue, he submitted that the 8th interested party had the legal right to hold and administer unregistered community land in this case Riwa Adjudication zone in trust for the benefit of the local community. He cited Article 62(2) and 63(3) of the constitution of Kenya. 43.On the final issue, counsel submitted that the application was incompetent and an abuse of court process as it violates the principle of exhaustion and seeks to reopen a matter settled over ten years ago. He relied on the Supreme Court case of Peter Oduor Ngonge v Francis Ole Kaparo & 5 Others [2012] eKLR. He urged the court to dismiss the application with costs. 44.Counsel for the Attorney General also filed their submissions dated 20th November, 2025 and identified the following issues for determination:a.Whether the Honourable court is functus officio hence has no jurisdiction to entertain this matterb.Whether the 2nd to 7th Respondents have demonstrated legal and identifiable interest to warrant them be enjoined in the proceedings as interested parties.c.Whether the application dated 29th November, 2023 offends the well-established doctrine of laches vis-a’-vis the right to fair trial.d.Whether the applicants have met and satisfied the tenets for setting aside consent judgment. 45.On the first issue, counsel submitted that since the initial case (Kisii High Court Judicial Review No. 30 of 2011) was resolved through a consent order adopted on 6th August, 2013, the court already made a final decision. He argued that the court was thus functus officio and therefore lacked jurisdiction. 46.He relied on the Supreme Court case in Raila Odinga & 2 Others v IEBC & 3 Others [2013] eKLR and Section 8(4)(5) of the Law Reform Act. 47.On the second issue, it was his submission that the 2nd - 7th Interested Parties never demonstrated a legal and identifiable interest to warrant their joinder. He argued they were used as a decoy and also failed to provide affidavits explaining how the 2013 consent order affected them. 48.He cited the case of Francis K. Muruatetu and another v Republic & 5 others (2016) eKLR and Skov Estate Limited & 5 others v Agricultural Development Corporation & another [2015] eKLR. 49.Going to the third issue, counsel submitted that the application to set aside the judgment, filed 10 years after the consent order, was barred by the doctrine of laches. 50.He further submitted that the said delay was an abuse of court process and violation of the right to a fair trial under Articles 50 and 159 of the Constitution. He cited the Court of Appeal case of Chai Lwambi Mwalambe and Another v Freedom Limited (Court of Appeal at Malindi, E022 of 2023) eKLR. 51.On the fourth issue, he submitted that the applicants failed to satisfy the legal grounds required to set aside a consent judgment, specifically the claims of lack of advocate authority, fraud and misrepresentation. He relied on the case of Brooke Bond Liebig v Mallya (1975) EA 266 and Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd [1982] KLR 485. 52.On the final issue, counsel relied on Section 30 of the Environment and Land Court Act and submitted that the application was an afterthought and lacked merit. He urged the court to dismiss it with costs. 53.Counsel for the 1st – 7th interested parties filed their submissions dated 11th December, 2025 and cited the case of Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 on the issue of consent. 54.On review and setting aside of orders, they cited the case of Ajit Kumar Rath v State of Orissa [2000] 9 SCC 411. On jurisdiction, they relied on the case of Republic v Karisa Chengo & 2 Others [2017] eKLR. 55.On the issue of fraud and impeachment of title, counsel cited the case of Elijah Makeri Nyangw’ira v Stephen Mungai Njuguna & Another [2013] eKLR. 56.On authority, consensus and advocate’s mandate, he relied on the case of Lawrence Musango Oketch v Karen Enterprises Limited [1982-88] 1 KAR 1088. 57.Finally, on, public policy and constitutional violations, he relied on the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR. Issue, Analysis and Determination 58.This Court has considered the application, pleadings, the law and submissions of the parties. The issues for determination are whether the consent order entered on 6th August, 2013 should be set aside, whether the proposed 2nd to 5th Interested Parties should be enjoined as interested parties to the suit, and who to bear the costs of the application. 59.This Court now sets to determine the issues raised sequentially. The first is whether the consent in bind should be set aside. Put in another way, the issue is whether prayer to set aside the consent in issue is merited. 60.The law on setting aside a consent order or judgment is settled. The threshold to be met for the setting aside of the consent order (just as any consent judgment or order) was well stated in the case of Lazarus Kirech v Kisorio Arap Barno [2018] eKLR Eldoret E & L Case No. 26 of 2013 where the court stated as follows;“It is trite law that a consent order can be varied where it is proved that it has been obtained by fraud or collusion or by an agreement contrary to public policy of the court or the consent was given with insufficient material facts or in misapprehension or ignorance of material facts or in general for a reason which would enable the court to set aside an agreement”. 61.Further in the case of Board Of Trustees National Social Security Fund V Micheal Mwalo [2015] eKLR, the Court of Appeal stated as follows:“A Court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of Court.” 62.In the instant case, it was the Applicants’ case that the 8th Interested Parties were not parties to the Judicial Review application when the consent order dated 6th August, 2013 was made. They claimed that the 8th Interested Party was made a party fraudulently to the suit and therefore the consent was a nullity. 63.The 8th Interested Party on the other hand contends that the court became functus officio after adoption of the consent order and that it lacked the jurisdiction to hear and determine the present application. 64.It argued that it had the legal right to hold and administer the suit parcel in this case Riwa Adjudication zone in trust for the benefit of the local community. 65.The 8th Interested Party’s asserted that nothing had been tendered by the Applicants to show that there was fraud in reaching the said consent. The outstanding question is, Had the threshold for setting aside a consent been met in the instant applicant? This, the court can only deduce from the facts presented by the parties herein on the issue. 66.This Court has perused the court record keenly and noted both its content. It has also perused the documents filed therein on various dates. It is not in dispute that the consent dated 22nd July, 2013, as purported by the applicants to have been filed in Kisii Misc. JR Cause No. 30 of 2011 on 23rd July 2013 and which is annexed to the Supporting Affidavit of the Applicant herein, was a draft consent proposed by a party or some parties before all the parties had agreed. The document sought to be relied on by the applicants to prove to the court that a consent which was fraudulent was reached by the parties and also a stranger was annexed to the Affidavit of Elizaphan Ager Kirowo. It was a set of two pages of papers. It was not executed at all by any of the parties. 67.A keen analysis of the same makes this court to find, and it is clear to me therefore, that the draft consent had various limbs, specifically four (4) in number, to it as its terms. One of the limbs, being number 2, was the one which proposed the land known as Samba area within Riwa to be surrendered to the County Government of Homabay and the Land Adjudication Officer to register the same in the County Government name. The other limb relevant to the prayers for setting aside, in the instant application, was the third, which was that the County Government was to pay ten (10%) percent of the investments at the end of each financial year to all the disputing individuals. 68.Notably, the proposed consent dated 22nd July, 2013, marked as annexture EAK3 to the Affidavit of Elizaphan Ager Kirowo, was to be between the Ex Parte Applicant, the respondent and the interested party as well as their respective their advocates. The court record shows further that; indeed, the proposed consent was not the one that was ultimately entered into by any of the parties and ultimately adopted by the Court. Instead, another consent was entered into by the parties. It was the one which gave rise to the order. That is to say, the consent order dated 6th August, 2013 was borne out of a consent dated 23rd July 2013 and filed on the same day. It had only two limbs. It was recorded by the Deputy Register. It was signed by or between all the three parties and their respective counsel, with each of the parties, being the Ex Parte Applicant, the Respondent and the Interested Party signing above their counsels’ signatures. The County Government also appended a signature and stamp at the end thereof, that is to say, after all the parties had voluntarily signed their respective parts. 69.The terms of the consent were only two, and clear to the point. The first one was the withdrawal of the Judicial Review Application. The second one modified the limbs No. 2 and 3 of the proposed consent to the effect that the dispute was to be referred to the District Land Adjudication Officer to publish the register for Riwa Adjudication Section to allow lodging of objections to the adjudication register with a view to registering the land an issue in the name of the County Government of Homa Bay. 70.This Court finds further that by the Applicants annexing a strange document which was not even executed as a consent by all parties and further to purport that the terms in the proposed consent, specifically that the Interested Party gave away land of two clans, Kakdhimu East and Kakdhimu West, to the 8th proposed Interested Party, the applicants were not truthful and intended to mislead the court to believing that there was fraud committed. This deprives them of the discretion equity would accord candid parties because he who comes to equity should do equity. When one lies to the court he is not doing equity. 71.Additionally, for the Interested Party to claim that the 8th proposed Interested party was fraudulently sneaked into being party to the consent while it was the same said party that was the one among all the parties who included the County Government of Homabay into the signatory is nonsensical, illogical, deceptive, and untruthful. This court rejects the proposition in totality. 72.Be that as it may above, the 1st Applicant contends that he never authorized the firm of S. O. Nyauke & Co. Advocates to represent him when signing the consent. The first question the court is to satisfy itself on is, was the said Advocate duly authorized to appointed to represent the said party in the Judicial Review matter, and if so, when did the appointment begin and cease? This obligates the court or learned judge to make an examination of the record. 73.This Court finds that the firm of S. O. Nyauke & Company Advocates filed a Notice of Appointment of Advocates for the Interested Party on 23rd October, 2011 when it formally came on record for him. It also finds that ever since the appointment the Interested Party did not raise any issue of the representation by the said firm. That representation continued all along up to the time of filing the consent and thereafter, to the year 2023 when the firm currently on record for him filed a Notice of Change of Advocates. At no point in time during the pendency of the Judicial Review herein did the firm represent or purport to represent the County Government of Homabay. 74.In any event, the Interested Party appointed the firm of M/s S.O. Nyauke & Company Advocates in terms of Order 9 Rule 7 of the Civil Procedure Rules and at no point did the Party file a Notice of Intention to Act in Person as required by Order 9 Rule 8. This being the position it means that the law firm of S. O. Nyauke and Company Advocates were duly instructed and acted on the instructions of the Interested Party before, and during the signing and filing of the find consent. At any rate, the Interested Party swore at paragraph 4 of the Supporting Affidavit that in October 2023 when he noticed activities on the suit land, of which he attached photographs he marked as EAK 1, he proceeded to his lawyer S. O. Nyauke & Company Advocates’ office to find out what happened to his case. He deposed specifically that “…proceeded to my lawyer S.O. Nyauke Advocate to find out what happened tour case…”. This means that ever since he appointed the said lawyer to that time in 2023 the said counsel was his Advocate. It means further that the lawyer was all along duly instructed to act in his behalf. 75.Furthermore, the Interested Party himself signed the consent in addition to his advocate, S. O. Nyauke. Whereas he alleges that he did not sign it, I have found, in the next paragraph below, that there was a signature against his name, and that the signature was similar to the one he used in the Affidavit in support of the application. He did not report up the time of the application, about over ten years, of a forgery of his signature. 76.The Applicant does deny that fact that he appended his signature to the consent but upon the examination of the signature used to execute the consent it renders the finding that it is his. This Court has compared the signature appended to the consent filed the party indicated as the Interested Party and adopted by the court, and the one in the Supporting Affidavit in support of this application. They are similar. In any event, at no point in time has the Interested Party filed a complaint with investigators or police that his signature was forged. Therefore, it is not true and correct for him to alleged he did not sign the consent or that the Advocate did not have sign it in his behalf. What I mean is that is it misleading for the applicant to state that his advocate did not have authority to sign the consent as though it was only the advocate who signed the consent on his behalf. He himself was party to the consent, and voluntarily appended his signature to it. The occurrences looked together, with the intention of all the parties to the consent, show that each of the parties also signed their respective party parts of the consent alongside their own counsel as it was intended to be so that none of them would resile from it. 77.Furthermore, the Interested Party deponed that upon noting the activities in October 2023 he went to the law firm of S. O. Nyauke & Company Advocates to inquire what was happening. He, in the deposition, indicated that he went to his lawyer to ask what happened to their case. If the lawyer did not have instructions to enter into the consent then why acknowledge him as his lawyer? This, thus, is clear to me that the applicant cannot abate and reprobate on his actions which he voluntarily did He has not denied that fact of his signature being appended to the consent. 78.The Interested Party deponed that in 2013 his lawyer M/S S. O. Nyauke and company advocates sent to him a (draft) consent which he was to sign but he rejected it. He did not depone further whether after rejecting the consent he went back to the lawyer to confirm with him what became of the rejected or intended consent. Again, he being a member of the Clan who could be consulted, as was done in October 2023, the Clam in respect of which he was allegedly purporting to sign their land off to the proposed 8th Interested party he does not explain as to whether he informed the members of that Clan or not about the said consent which he did not sign. Again, the interested party and the second proposed interested party deponed that there were some objections to the adjudication Register by some members of the Clan while other members did not have time to give objections. That being the case the interested party does not explain his silence between 2013 and 2023 about the consent that he allegedly did not sign. Further, the said party does not explain how and, if the adjudication register was opened and some members of the community gave objections thereto, why he claims that there was no notice to the Community except to the 8th proposed interested party, yet some members of the community actually saw the notice and raised objections to the adjudication register. It is my view that the issues being raised by the state interested party and of course the second proposed interested party are an afterthought which arise after they went through the process raising objections to the adjudication process after the consent was adopted by the Court. 79.Of setting aside or otherwise of consents, in the case of Kenya Commercial Bank Ltd v Specialized Engineering Company Ltd [1980] KEHC 11 (KLR) the court held as follows:“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.” 80.In this case, as I have noted above, it is this court’s view that in as much as the Applicant claims that he had not authorized his advocate on record in signing the consent, a perusal of the consent order dated 23rd July, 2013 confirms that he in fact signed it. It is therefore my humble opinion that the consent order dated 6th August, 2013 was never obtained through any collusion, fraud and or misrepresentation since it had clearly been signed by each party including their representing counsel. 81.In addition, despite the Applicant’s allegation that the said firm of S. O. Nyauke & Co. Advocates represented the County government, there was no evidence on the same. There is neither Appearance nor Notice of Appointment of Advocates filed by the said firm to act in that behalf. There is no acknowledgement by M/S Nyauke & Co. Advocates that they represented the 8th proposed interested party. It is this court’s view that from the content and the face of the consent, the County Government of Homabay merely affixed its signature and stamp, confirming what the parties had agreed. It was never a party and neither did it receive a benefit therein but was a witness to the same. Neither did its presence or signature misrepresent or defraud any parties or nonparties to the Judicial Review or take away the rights of the members of the claim from participating in the adjudication process, given particularly that all the parties were represented by their learned counsel. 82.It is important to note that the draft consent dated 22nd July, 2013 was never captured in the final consent order since parties had not agreed by then. It can also be seen that the same never bore the parties’ signatures. 83.The draft consent order dated 22nd July, 2013, had four clauses as stated below verbatim:“By consent of the ex parte applicant the respondent and the interested party, the following orders be entered in this judicial review proceedings: 1.The Judicial Review proceedings commenced on the 18th March, 2011 and file by Notice of Motion dated the 21st March, 2010 be and is hereby marked as wholly withdrawn by the ex parte applicant. 2.The suit land known as Samba area within Riwa Adjudication Section be and is hereby surrendered by the disputing parties to the County Government of Homabay and the District Land Adjudication Officer to register the suit land in the name of County Government of Homabay. 3.The County Government shall in consideration pay to the disputing parties 10% of the proceeds from the investments on the suit parcel of land at the end of each financial year which payment shall be shared among all the disputing individuals whose names have been part of the court proceedings as at the date of this consent. 4.This Judicial Review shall thus be considered as compromised on the foregoing terms with no orders as to costs.” 84.Furthermore, a cursory look at the court record confirms that the consent finally agreed on, signed and filed was dated 23rd July, 2013 whereby the court on 6th August, 2013 reproduced it verbatim in handwritten form. 85.In addition, the consent Order as adopted on 6th August, 2013 only had two clauses as stated below verbatim:“As per the consent order dated 23rd July, 2013 signed by counsel for both parties, it is hereby ordered as follows: 1.By consent the judicial review proceedings commenced on the 18th March, 2011 and filed by Notice of Motion dated 21st March, 2011 be and is hereby discontinued wholly by the exparte applicant with no orders as to costs. 2.The pending dispute be and is hereby referred to the District Land Adjudication officer to publish the register for Riwa Adjudication Section for lodging objection to the Adjudication Registrar with of registering the land in issue in the name of the County Government of Homabay.” 86.In light of the above, it is without a doubt that the consent did not surrender the land to the County Government of Homabay as alleged by the Applicant. It is this court’s view that the agreement was that the pending dispute be referred to the District Land Adjudication officer so as to publish the register for Riwa Adjudication Section and lodging objection to the Adjudication Registrar. 87.It is also important to note that the (filing or failure thereof to) objections as alleged by the Applicant is neither here nor there since the consent did not go as far as dealing with the same or barring the clan members from raising them. The clan was given chance to follow the due process in regarding to the adjudication of the land in issue. This court shall therefore not belabor on the issue. 88.Lastly from the Affidavit sworn by Griffin Perprodito in support of the application it is clear to me that the application was an afterthought. It was such because it was brought as a result of the negotiations with both the land adjudication officer and County Government that had been going on (in accordance with the second limb of the consent) with regards to the issuance of titles deeds having either stalled or not seen the light of day. Therefore, the applicants were discontented with the process. Further, that the said negotiations were as a result of the implementation of the consent which was entered into on the 6th August 2013. I state so because it is deponed in the Affidavit that on 20th August 2013 the Land Adjudication Officer published the Adjudication Record and invited the people to raise objections thereto. He adds that the Notice was copied to the County Government and secretly published. He states further that upon that Notice is going out and in spite of its secrecy some of the members of the clan raised objections in the Register but they never got a response thereto. Further, some of the members of the clan did not get to raise objections thereto. Further, following those objections and while people were waiting for responses, activities started taking place in September and October 2023. This court notes that this was over ten (10) years later. 89.He added that they not only had been following with the County Government for issuance of title deeds but they had been waiting for responses on the objections that they raised. It is clear to me that these objections were released following the second limb of the consent impugned, which was to the effect that upon the withdrawal of the judicial review herein the Land Adjudication officer was to publish the Adjudication Record and invite objections thereto. This was done only fourteen (14) days after the entry of the consent. This withdraw and invitation to the people to make objections as agreed speaks volumes. To me it clearly shows that indeed the consent was known to the clan and the clan was invited to make objections. If the clan did not actually follow the issue of objections to the Register in accordance with the consent with the Land Adjudication Act, then they did not exhaust the remedies available to them as per the Act. 90.In the circumstance, it is this court’s view that the consent order dated 6th August, 2013 was proper and this court hereby declines the invitation to set it aside. Therefore, this instant application was incompetent, flawed and cannot not be granted. 91.Going to the second issue on joinder of the 2nd to 7th Interested Parties, it is important to note that on 26th March, 2024 this court orders that the said proposed parties be joined as the 2nd to 7th interested parties since they were Elders from Kakdhimu Clan. But as noted below, the Judicial Review had been withdrawn. Thus, when the Court ordered that the parties be joined, it was in error. Also, that order was set aside meaning that the parties remained as were as at 23rd July 2013. 92.It is this court’s view that having already found that the consent order dated 6th August, 2013 was proper the parties, including the Interested Party who was among the voluntary signatories thereto, were and are therefore bound by its terms. It is clear that in its terms, there is no judicial review matter pending herein over the same subject between the same parties as were on the 23rd July 2013. 93.Notably, Clause 1 of the consent order was to have and it did have the Judicial Review Application withdrawn by the consent of all parties. Therefore, there Judicial Review matter was effectively withdrawn on the date the consent was adopted as the order of the court. The effect of withdrawal of a suit or pleading is clear: no suit or pleading exists any longer. Order 25 Rule 1 provides for the withdrawal of suits. 94.That being so, the merits of the prayer for the 2nd to 7th parties to be joined as interested parties should be decided from that prism or premise. The definition and parameters that guide how an interested party may be joined to a suit or claim were ably stated by this Court in Masinjila ((Suing as the legal representative of the Estate of Joshua Andala Masinjira (Deceased)) v Solmat Enterprises & 2 others; Kamau (Proposed Interested Party) ((Suing on behalf of the Catholic Diocese of Kitale)) (Environment & Land Case 37 (E033) of 2021) [2023] KEELC 17006 (KLR) (25 April 2023) (Ruling). In the decision the court held: 95.“21....An Interested Party is defined, under Rule 2 of The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (referred to herein as the Mutunga Rules, 2013), Gazetted on 28/06/2013, as “interested party” means a person or entity that has an identifiable stake or legal interest or duty in the proceedings before the court but is not a party to the proceedings or may not be directly involved in the litigation." In other words, there has to be a nexus between who the person is and the existing proceedings by way of a stake or legal duty.22.In the case of Francis Karioki Muruatetu & another v Republic & 5 others, Petition 15 as consolidated with 16 of 2013 [2016] eKLR, the Supreme Court of Kenya set out guidance on the requirements for successful application for joinder as an Interested Party. At paragraph 37 it gave three principles to be followed, by stating that the Applicant(s) must show:(i) The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral. (ii)The prejudice to be suffered by the intended interested party in case of non-joinder, must also be demonstrated to the satisfaction of the Court. It must also be clearly outlined and not something remote. (iii)Lastly, a party must, in its application, set out the case and/or submissions it intends to make before the Court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the Court.23.Rule 7(1) of the same Rules, being the Mutunga Rules, 2013 provides that “A person, with leave of the Court, may make an oral or written application to be joined as an interested party.” This means that anyone wishing to be enjoined as an interested party has to seek the leave of the Court to do so. What then is the position of a person who has not been granted leave of the Court to be enjoined as such. He/she is a stranger to the proceedings. He is neither a party nor participant. In such circumstances he does not enjoy the position of a party to the proceedings. It means further that he does not have the rights and duties of a party to the suit or proceedings. Parties to the suits are the only ones who have the capacity to move the Court substantively unless leave is granted to them to do so, for instance, as amicus curiae.24.The above analysis means that a person who intends to move or moves the Court to be enjoined as an interested party is only a proposed interested party in so far as the proceedings are concerned. Whatever prayers he makes before being enjoined, other that the one for leave to be enjoined are made by a stranger and cannot be allowed before the party is enjoined in the proceedings.” 96.Additionally, this Court stated, in Florence Nafula Ayodi & 5 Others V Jonathan Ayodi Ligure V John Tabalya Mukite & Another; Benson Girenge Kidiavai & 67 Others (applicants/intended Interested Parties) [2021] EKLR, that for one to be joined as a party the proceedings he wishes to participate in may either be at “the nascent or other stages but must be alive.” Also, in Leonard Kimeu Mwanthi v Rukaria M’twerandu M’iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties) [2021] eKLR, her Ladyship L. Mbugua J stated that “A party claiming to be enjoined in proceedings must have an interest in the pending litigation…” 97.Therefore, it must be clear that one cannot have a stake in a nonexistent claim or suit, in the sense that he wishes to be joined in a matter that has been concluded in one way or other or withdrawn. The proceedings must be alive, and more so in the nascent stage. 98.In this application the 2nd proposed Interested Party wished for him and his other colleagues who signed the Authority to Plead to be joined in a Judicial Review proceeding that no longer existed after withdrawal ion 6th August 2013. It is not possible or tenable. Thus, it is my opinion that the prayer to have the 2nd to 7th proposed Interested Parties to be joined in the suit or matter is incompetent and a nullity by virtue of the fact that there was no Judicial Review in existent immediately after the 6th August, 2013. 99.The upshot of the foregoing is that the application dated 29th November, 2023 lacks merit. It is hereby dismissed with costs to the Respondents. 100.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 28TH MAY 2026.HON. DR. IUR NYAGAKA,JUDGE.In the presence of,Ms. Odhiambo Advocate for Mwamu Advocate for the Interest Party and Proposed IP/ ApplicantsMr. W. Akello Advocate for the 8th Proposed Interested PartyMr. Ngani Advocate for Adoyo Advocate the Ex Parte ApplicantAttorney General for the 1st Respondent Absent (Mr. Akello holding brief)