Ogembo & another v Owaga; Oketch (Interested Party) (Environment and Land Appeal E017 of 2023) [2024] KEELC 6874 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that parties to an appeal cannot use a consent order to take away a stranger's land rights.
What this practically means
#Executive summary
#Key legal issues
#Validity of the consent order binding a non-party
The consent order was set aside because it affected the Applicant's title to Kisumu/Pand-Pieri/3139 while he was neither a party to the appeal nor to the consent.
The Applicant was a defendant to the 2nd Appellant's counter-claim in the lower court, but the Appellants' appeal was pursued only against the judgment in favour of the Respondent, and the Applicant was not joined. The court held that had the court's attention been drawn to the Applicant's non-joinder, the consent would not have been adopted as an order. Parties may compromise an appeal only in so far as the consent does not affect the interests of a non-party.
Joinder of the Applicant as an interested party
The Applicant, having been a party to the lower court suit and judgment, has sufficient interest in the appeal to warrant joinder as an interested party.
Although the grounds of appeal suggest the appeal targeted only the judgment in the main suit, the Appellants had not expressly limited the appeal, so the Applicant's interest in the judgment touching his parcel was sufficiently established. His prior participation as a defendant to the counter-claim demonstrated a real interest in the appeal's outcome.
Objection that the Applicant's advocates were not properly on record
The objection failed because the Applicant, not being a party to the appeal, was free to instruct new advocates for the joinder application.
Sala & Mudany Advocates acted for the Applicant only in the lower court. Since the Applicant was not joined to the appeal, that firm could not be deemed to be acting for him in the appeal, and he could engage another firm for the present application.
Legal principles established
#- A consent judgment or order has the same effect as a contract and can only be set aside on grounds which would justify the setting aside of a contract.
- Parties to an appeal cannot, by consent, bind a non-party's proprietary interest; a consent compromising an appeal must not affect the interests of a person who is not a party to the appeal.
Court orders
#- 1.The consent orders made by this court on February 20, 2024 are set aside together with all consequential proceedings undertaken pursuant thereto if any
- 2.The Applicant Julius Mbori Oketch is added as an Interested Party to this appeal and shall be served with the record of appeal once filed
- 3.Each party shall bear its costs of the application
- On appeal from
- Chief Magistrate's Court, Kisumu (ELC)
- Kisumu CMCELC No. 309 of 2018
- Jurisdiction invoked
- Appellate jurisdiction over the lower court suit, hearing the Applicant's Notice of Motion dated 7th May 2024 within the pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogembo & another v Owaga; Oketch (Interested Party) (Environment and Land Appeal E017 of 2023) [2024] KEELC 6874 (KLR)", Case Analysis (2024). Kisumu Environment and Land Court Appeal (as filed 25th April 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6874/eng@2024-10-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.