https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4894

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUSIA** **ELC LOS E008 OF 2020 (OS)** **THADDEUS EGONDI ……………….……..…...……………. APPLICANT** **= VERSUS =** **PAUL NERIMA PAMBA ……………….….………….. 1ST RESPONDENT** **DANIEL OKONGO WANGIRA ………….………….. 2ND RESPONDENT** **RULING** 1. Before the Court is the Notice of Motion dated 11th May 2026 brought by the Applicant, seeking principally that this Court reopens this matter for the limited purpose of hearing the parties on the allocation of the four portions divided by the County Surveyor, as the parties Cannot agree on apportionment thereof. 2. The application is supported by the affidavit of the Applicant sworn on 11th May 2026 and a further affidavit sworn on 15th June 2026. **THE APPLICANT'S CASE:** 1. The Applicant's case is that this Court, pursuant to the consent judgment entered on 7th December 2021 and subsequent orders issued on 16th December 2021, directed the County Surveyor to visit the suit property, partition the same into four portions and prepare the requisite mutation forms for registration. 2. According to the Applicant, the County Surveyor complied with the Court's orders and subdivided the suit land into four portions marked A, B, C and D. However, the parties failed to agree on the allocation of the respective portions, thereby necessitating the present application. 3. The Applicant further states that portions B and C contain the homesteads and burial sites of members of the families of Thaddeo Egondi Nafula and Clement Egondi Wandera, who have occupied those portions for many years. He contends that allocating those portions to the Respondents would result in the demolition of homes and disturbance of family graves and would therefore occasion a miscarriage of justice. 4. The Applicant consequently proposes that his family be allocated portions B and C, while the Respondents be allocated portions A and D, which, according to him, are vacant and unoccupied. **THE RESPONDENT'S CASE:** 1. The application is opposed by the 1st Respondent through a Replying Affidavit sworn on 9th June 2026. 2. The Respondent contends that the dispute concerning occupation and allocation of the suit property had long been determined by the Budalangi Division Land Disputes Tribunal in proceedings conducted on 25th October 2004. According to the Respondent, the Tribunal decision was subsequently adopted as a judgment of the Court on 29th March 2006 in Busia Land Disputes Case No. 24 of 2004. 3. The Respondent further avers that the boundaries were planted by elders pursuant to a mutual agreement reached between the predecessors of the parties and that a sketch map of those boundaries formed part of the Tribunal proceedings. 4. It is the Respondent's position that the Applicant neither appealed against nor sought review of the Tribunal award or the judgment adopting it, and that reopening the present matter for purposes of allocation of the portions would amount to reopening and relitigating issues that were conclusively determined many years ago. 5. The Respondent therefore argues that the County Land Registrar ought to proceed with implementation of the subdivision in accordance with the earlier determination and not according to the Applicant's preferred allocation. **SUBMISSIONS** 1. In his written submissions, the Applicant argues that the consent judgment entered on 7th December 2021 effectively superseded and overtook the earlier Tribunal determination of 25th October 2004. The Applicant submits that the consent judgment and the orders issued on 16th December 2021 are binding upon the parties and that no appeal or review has been preferred against those orders. 2. The Applicant further submits that a consent judgment can only be set aside on grounds such as fraud, mistake or misrepresentation and relies on the decision in **Intercounty Importers and Exporters Limited -v- Teleposta Pension Scheme Registered Trustees & 5 Others [2019] eKLR** for that proposition. 3. The Applicant maintains that the Court should preserve the status quo on the ground by allowing parties to retain the portions they currently occupy and where their homes and family graves are situated. 4. On the other hand, the Respondent submits that the issue of allocation and occupation was settled by the Tribunal award and that the present application amounts to an attempt to relitigate matters already determined by a competent tribunal and adopted by a Court of law. **ANALYSIS AND DETERMINATION:** 1. I have considered the Notice of Motion dated 11th May 2026, the affidavits and the rival submissions therein and the only issue that falls for determination is**:** **a)** **Whether the Applicant has demonstrated sufficient cause to justify the reopening of this matter.** 1. The Applicant contends that whereas the County Surveyor has already subdivided the suit land into four portions pursuant to the orders of this Court, the parties have failed to agree on the allocation of the resultant portions, thereby necessitating the reopening of the matter. 2. The Respondents, on the other hand, contend that the issue of occupation and allocation of the portions on the ground was long settled and that reopening the matter would amount to relitigating issues already determined. 3. The Court has carefully considered the material placed before it. The record reveals that on 7th December 2021, the parties herein entered into a consent which was adopted as an order and judgment of the Court. 4. The Court further notes that on 16th December 2021, consequential orders were issued directing the County Surveyor to partition the suit land into four portions and prepare the necessary mutation forms for registration. 5. A consent judgment or order has contractual effect and is binding upon the parties unless and until it is set aside on grounds that would justify setting aside a contract, such as fraud, collusion, mistake, misrepresentation or any other sufficient cause recognized in law. 6. The Court of Appeal in **Wasike -v- Wamboko (1985) KECA 149 (KLR)** held that: “**It is now settled law that a consent judgment or order has contractual effect and can only be set side on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out: see the decision of this Court in J M Mwakio v Kenya Commercial Bank Ltd Civil Appeals 28 of 1982 and 69 of 1983. In Purcell v F C Trigell Ltd [1970] 2 All ER 671, Winn LJ said at 676; “It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.”** 1. In the present case, no application has been made to set aside, vary or review the consent judgment of 7th December 2021, nor has any appeal been preferred against the same. Equally, the Applicant has not demonstrated the existence of any of the recognized grounds upon which this Court may interfere with the consent orders. 2. The Court further notes that the issue regarding the respective families' occupation and entitlement to specific portions of the suit land had previously been determined by the Budalangi Division Land Disputes Tribunal. The Tribunal identified the portions to be occupied by the respective families, and the boundaries were physically demarcated and planted by village elders in accordance with that determination. 3. The Tribunal's award was subsequently adopted as a judgment of the Court on 29th March 2006 in Busia Land Disputes Case No. 24 of 2004, and there is no evidence that the award or the judgment adopting it has ever been appealed against, reviewed or set aside. The identity of the respective portions allocated to each family is therefore binding upon all the parties. 4. In those circumstances, the question now advanced by the Applicant, namely that one family should occupy the upper side of the road while another occupies the lower side, is not an issue that properly falls for determination at this stage. To entertain such a contention would be to reopen and reconsider matters relating to occupation and allocation that have already been conclusively determined, contrary to the principle of finality of litigation. 5. In the Court's view, the invitation to reopen the matter and hear the parties afresh on the allocation of the resultant portions would inevitably require the Court to revisit questions touching on occupation and entitlement to specific portions of the suit property, matters which were either expressly resolved or ought to have been addressed within the framework of the consent entered into by the parties. 6. Litigation must at some point come to an end. Courts are enjoined to uphold the principle of finality in litigation and to guard against parties reopening disputes that have already been conclusively determined. To accede to the Applicant's request would be to reopen a matter that was settled by consent of the parties and adopted as a judgment of the Court, thereby sanctioning relitigation through the back door. 7. The Court further observes that if indeed the complaint by the Applicant is that the Respondents have declined, refused or failed to comply with the orders issued by this Court on 16th December 2021, the law provides appropriate mechanisms for enforcement and compliance with Court orders. Reopening a concluded matter is not one of the recognized mechanisms for compelling compliance with existing Court orders. The proper course is to seek enforcement of the orders already in place rather than invite the Court to reopen and relitigate issues that were settled by consent. 8. The Court therefore finds that the Applicant has failed to demonstrate sufficient cause or the requisite legal basis for reopening this matter. The application before the Court is, in effect, an invitation to revisit and re-litigate issues that stand concluded by the consent judgment of 7th December 2021, which judgment remains valid, binding and enforceable unless set aside or overturned on appeal. 9. Accordingly, the Court finds that the Applicant has not met the threshold for reopening the matter. **DISPOSITION:** 1. The Notice of Motion dated 11th May 2026 is hereby dismissed with costs to the Respondent. **Ruling dated, signed and delivered in open Court on this 30th day of July 2026.** **C. MUGAMBI** **JUDGE** **30TH JULY 2026**