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ELCPartially AllowedNot stated in the judgment· [2025] KEELC 1170 (KLR)

Kimeu v Kyunguti & 4 others; Matata & another (Interested Parties) (Environment & Land Case 18 of 2019) [2025] KEELC 1170 (KLR)

Environment and Land Court
13 March 2025
2,108 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court threw out a backroom land deal, ruling that two parties cannot use a consent judgment to cancel land titles belonging to people who were never heard.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court (E. O. Obaga, Judge) determines a Notice of Motion dated 1st October 2024 by the 2nd, 3rd, 4th and 5th Defendants together with purported interested parties, seeking leave for C. M. Muthiani Advocates to come on record and for review and setting aside of a consent judgment recorded on 12th July 2022 between the Plaintiff and the 1st Defendant, which had resulted in revocation of titles to several parcels of land including parcels belonging to non-parties. The Applicants contended they were never served, never heard, and that the consent was a product of collusion. The Plaintiff and 1st Defendant opposed, arguing the consent was regular, service was effected, the decree had been executed, and no draft defence was exhibited. The court framed four issues: whether sanction under Order 9 Rule 9 was needed for the incoming advocates, whether the interested parties were properly on record, whether the threshold for setting aside the consent was met, and costs. The court held no sanction was required as there was no prior advocate on record; the interested parties were improperly on record having never sought joinder; and applying the tests in Kenya Commercial Bank Ltd v Specialized Engineering and Board of Trustees NSSF v Michael Mwalo, the consent was impeached for collusion between the step-siblings and for being contrary to the court's policy requiring formal proof in undefended land claims. The consent judgment and consequential orders were set aside, the Defendants granted 14 days to file defence, with costs borne by the Plaintiff and 1st Defendant.

Key legal issues

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01

Whether Order 9 Rule 9 sanction was required for the incoming advocate

Holding

No sanction was required as there was no advocate previously on record for the Applicants and no change of advocates post-judgment

Reasoning

The matter had been concluded by a consent recorded on 12th July 2022 and no advocate was appearing for the 2nd to 5th Defendants or interested parties. Since Order 9 Rule 9 applies only to a change of advocates or a party previously represented deciding to act in person after judgment, the incoming firm simply needed to file a notice of appointment.

p. 4
02

Whether the interested parties were properly on record

Holding

They were improperly on record because they never applied for joinder nor were they joined by the court

Reasoning

The court noted there is a clear procedure for joining a party, namely an application to court or the court's own motion. The interested parties did neither. Consequently, their participation in the application was unprocedural, as the Plaintiff and 1st Defendant had also argued.

p. 4
03

Whether the consent judgment of 12th July 2022 should be set aside

Holding

Yes - it was set aside on grounds of collusion between the Plaintiff and the 1st Defendant and because it was contrary to the policy of the court

Reasoning

Applying the KCB and NSSF authorities, the court found the Plaintiff and 1st Defendant (step-brother and step-sister) colluded to enter a consent whose effect was to affect title holders who were not party to it. The consent was recorded without a formal proof hearing in an undefended land matter, contrary to the court's policy, making it liable to be set aside.

p. 5

Legal principles established

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  • A consent order can only be set aside if it is shown it was obtained by fraud, collusion, an agreement contrary to the policy of the court, or where given without sufficient material facts or in misapprehension of such facts
  • In undefended land matters where the claim is not a liquidated claim, the case must be proved in a formal proof hearing; recording a consent that defeats non-party title holders without formal proof is contrary to the policy of the court

Court orders

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  1. 1.The consent judgment entered on 12th July, 2022 together with the consequential orders are set aside
  2. 2.The Defendants are at liberty to file their defence to the Plaintiff's claim within 14 days from the date of the ruling
  3. 3.The costs of the application shall be borne by the Plaintiff and the 1st Defendant
Jurisdiction invoked
Original civil jurisdiction; application under Section 25 Rule 5 of the Civil Procedure Rules and Order 9 Rule 9 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kimeu v Kyunguti & 4 others; Matata & another (Interested Parties) (Environment & Land Case 18 of 2019) [2025] KEELC 1170 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1170/eng@2025-03-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.