Elephant Oil Mills Limited v Njorogre & 5 others (Civil Application E037 of 2024) [2025] KECA 1320 (KLR)
The bottom line
#Kenya's Court of Appeal ruled a person removed from a case cannot appeal decisions in it without leave, striking out the appeal as incompetent.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal lies as of right, and without leave of the court, from a decision declining to set aside, vary, review or discharge a consent order, in the absence of an order joining the applicant to the proceedings
- 2.Who may apply for orders to set aside, vary, review or discharge a consent order
- 3.Whether the applicant's Motion was in compliance with the proviso to Rule 86 of the Court of Appeal Rules, 2022 as to timing
Key legal issues
#Whether the 3rd respondent had locus standi to apply to set aside the consent order and thereafter a right of appeal
Having been divested of all rights in the suit property by unchallenged prior decisions and discharged from the proceedings without appealing or seeking review, she was a stranger to the subsequent proceedings and had no locus standi; hence no appeal lay without leave.
The 3rd respondent's claims to the suit property had been struck out or dismissed in three prior suits, none of which was overturned on appeal or review. She did not challenge the directions discharging her from Kwale ELC No. 101 of 2021, nor seek to be re-joined, nor obtain leave to appeal. A consent order is contractual in nature and only parties to it or third-party beneficiaries may challenge it. Her application was therefore fatally defective and could not yield an automatic right of appeal.
Compliance with the proviso to Rule 86 of the Court of Appeal Rules, 2022
The Motion, filed on 15th March 2024 within 30 days of the notice of appeal dated 14th March 2024, complied with the proviso to Rule 86.
Although neither the Motion nor the supporting affidavit disclosed the date of service of the notice of appeal, and the lodgement date on the notice was unclear, the Motion was filed 28 days after the notice of appeal, which the court held satisfied the proviso.
Legal principles established
#- A consent order or judgment is essentially a contract, and only a party thereto or a third-party beneficiary has locus standi to enforce, challenge or sue upon it.
- A consent order may be set aside only on grounds such as would justify varying or rescinding a contract, namely fraud, collusion or an agreement contrary to the policy of the court.
- The right to appeal is statutory: only a party aggrieved by a judgment, or a non-party who obtains leave, may appeal; without leave, a non-party with no locus standi has no right of appeal.
- A person discharged from proceedings who neither challenged the discharge nor sought to be re-joined is a stranger to those proceedings and cannot appeal as of right from orders made in them.
Court orders
#- 1.The 3rd respondent's notice of appeal dated 14th March 2024, being incompetent, is struck out
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kwale
- ELC Case No. 101 of 2021
- Jurisdiction invoked
- Rule 86 of the Court of Appeal Rules, 2022 (application to strike out a notice of appeal)
Relief refused
#3rd respondent's intended appeal against the ruling and orders of the ELC at Kwale dated 11th March 2024
She had no locus standi, having been discharged from the proceedings and divested of all rights and interests in the suit property, and did not seek leave to appeal
Costs
No costs order is expressly stated in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, the 3rd respondent's notice of appeal dated 14th March 2024 was incompetent and is hereby struck out. Orders accordingly.
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.
a consent order or judgment is essentially a contract in respect of which only a party thereto or a third-party beneficiary has locus standi and recourse either to enforce, challenge or sue upon
she was not party to subsequent proceedings and had no locus standi to challenge the impugned consent to which she was not privy. Consequently, no appeal lies as of right in her favour from the ruling declining her two Motions
Issues in the judgment
#Internal inconsistency in the record: the consent order is stated in one place to have been recorded on 9th March 2022 and elsewhere on 9th March 2023; the notice of appeal is dated 14th March 2024 but 'appears to have been lodged on 18th March 2018'; the ELC consent order is described as recorded on 9th March 2023 while the body says 9th March 2022.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elephant Oil Mills Limited v Njorogre & 5 others (Civil Application E037 of 2024) [2025] KECA 1320 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1320/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.