Kebiro v Nyakundi; Ndubi (Interested Party) (Environment & Land Case 545 of 2013) [2025] KEELC 510 (KLR)
The bottom line
#A Kenyan land court threw out a backroom deal over family land, finding the parties colluded and the dead owner's widow was never heard.
What this practically means
#Executive summary
#Key legal issues
#Whether Nyachiro Nyagaka & Co. Advocates were properly on record
They were not; the application to take over was not served on the outgoing firm, Magut & Sang Associates Advocates, rendering the order allowing the change a nullity
Order 9 Rule 9 requires that a change of advocate after judgment be effected either by court order on notice to all parties or by consent with the outgoing advocate. The incoming firm's application was expressed to be served only on the Defendant. Following Ali Bin Khamis, an order made without service on a person affected is a nullity which the court has inherent jurisdiction to set aside ex debito justitiae. The court accordingly set aside the order allowing the firm on record.
Whether the Applicant should be joined as an interested party
Yes; even without a specific application, the court has power to join her, given her grant of letters of administration ad litem and the fact that her interests were affected without being heard
Under Order 1 Rule 10(2) the court may add a person whose presence is necessary to adjudicate completely on the questions in the suit. The Applicant holds an unrevokeed grant ad litem over the estate of the deceased original plaintiff and claims to be his lawful widow. Although she did not specifically plead to be joined, the court held it could join her of its own motion, especially since her interests were affected without an opportunity to be heard.
Whether the consent of 23rd October, 2023 should be set aside
Yes; it was entered through collusion between the advocates and their clients and was set aside in its entirety with all consequential orders
While consent judgments are binding and can only be set aside on grounds such as fraud or collusion (per KCB v Specialized Engineering, Hirani v Kassam, Flora Wasike, Brooke Bond Liebig), the court found clear collusion: the substituted plaintiff was the Defendant's daughter, the advocates recorded a consent outside the pending application, declaring the Defendant sole owner of the property, and failed to disclose the pending succession dispute and the Defendant's pending forgery charge.
Legal principles established
#- An order allowing an incoming advocate to come on record made without service on the outgoing advocate is a nullity settable aside ex debito justitiae
- A party whose interest is affected without being heard may be joined to a suit even after judgment
- A consent judgment obtained through collusion cannot stand and will be set aside
Court orders
#- 1.The order allowing M/s Nyachiro Nyagaka & Co. Advocates to come on record is set aside as a nullity, hence they are improperly on record in the case
- 2.The Applicant is joined in the suit as an Interested Party
- 3.The consent of 23rd October, 2023 is set aside in its entirety with all the consequential orders
- 4.The costs of the application shall be paid by the Plaintiff and Defendant jointly and severally
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; court acting under Order 9 Rule 9 and Order 1 Rule 10(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kebiro v Nyakundi; Ndubi (Interested Party) (Environment & Land Case 545 of 2013) [2025] KEELC 510 (KLR)", Case Analysis (2025). Suit number not stated in the judgment; ruling on Notice of Motion dated 19th December, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/510/eng@2025-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.