Mitalo v Okello (Environment and Land Appeal E028 of 2024) [2025] KEELC 1148 (KLR)
The bottom line
#A Kenyan court ruled that parties cannot use a consent to overturn a judgment that the trial court already refused to set aside.
What this practically means
#Executive summary
#Key legal issues
#Whether the court is obliged to adopt a consent filed by the parties, or may refuse to do so
Adoption of a consent is a discretion of the court to be exercised judiciously; the court is not automatically obliged to record or adopt consents presented to it and may reject an illegal or oppressive consent
The court reasoned that the requirement of adoption exists precisely so the court can consider the proposals against the facts of the case. Adoption does not oust the court's discretion; it is a check against recording consents that are illegal or oppressive. Discretion must be exercised judiciously, guided by legality, procedural propriety, clarity of terms and public policy.
Whether the proposed consent setting aside a judgment after a contested trial and dismissal of a review application should be adopted
The consent was declined because it sought to achieve by agreement the very orders the trial court had refused, circumventing merit review and constituting an abuse of the court process
The judgment sought to be set aside followed a full hearing in which both parties participated; the appellant had already unsuccessfully sought setting aside/review before the trial court. Allowing the parties by consent to set aside that judgment on appeal would set a dangerous precedent and was not aimed at resolving the ownership dispute.
Legal principles established
#- A consent between parties remains a mere contract until adopted as an order of the court, and adoption is a discretionary judicial act, not automatic
- In considering whether to adopt a consent, the court is guided by the legality and procedural propriety of the consent, clarity of its terms, and alignment with public policy
- Parties cannot, by consent, achieve through the back door orders refused by the trial court, as that circumvents merit review and is an abuse of process
Court orders
#- 1.Leave granted to the firm of Lugano and Achura Advocates to come on record on behalf of the Defendant in place of the firm of Odongo Awino & Company Advocates in Bondo PM ELC E038 of 2022
- 2.Leave granted to the firm of Kowinoh and Company Advocates to come on record on behalf of the Plaintifi in place of the firm of Owenga Ombuya & Company Advocates in Bondo PM ELC E038 of 2022
- 3.Declined to adopt terms 1 and 2 of the proposed consent dated 4th November 2024
- 4.The appeal to proceed for determination on its merits
- On appeal from
- Bondo Principal Magistrates Court
- ELC Case No. E 38 of 2022
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the Principal Magistrates' Court (consent adoption ruling in a pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mitalo v Okello (Environment and Land Appeal E028 of 2024) [2025] KEELC 1148 (KLR)", Case Analysis (2025). Bondo PM ELC Appeal (ruling on consent dated 4th November 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1148/eng@2025-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.