Midumbi (Suing as Personal Representative of the Estate of the Late Polycap Otieno Arodi - Deceased) v Sule & 6 others (Environment and Land Appeal E009 of 2023) [2025] KEELC 4080 (KLR)

The record showed the suit had been compromised by the consent order of 24th September 2018 and no judgement was delivered by Hon. Wambilianga on 27th July 2023. The only decision on that date was the ruling on the application dated 15th June 2022. Describing the appeal as being against a judgement was an error rendering the appeal, to that extent, misconceived.

On re-examination of the documents before the trial court, the court found that parcel No. 9395, measuring approximately half the suit land, was given to the Defendant with no complaint from him. All other parcels were received by members of Polycarp Otieno Arodi's family or through them, satisfying the consent order's requirement that each family receive 50%. The Appellant's grievance was internal to his own family.

The suit had been withdrawn by consent and a withdrawn suit is an ended suit; the law only allows filing of a fresh suit. Even if the suit were active, joinder required compliance with the Civil Procedure Rules on joinder of parties, and no leave was sought. The Interested Parties, listed as Respondents in the appeal, were therefore strangers to the proceedings.

The evidence before the trial court comprised the supporting and replying affidavits and annexures. The Appellant did not identify in submissions what evidence the court failed to consider. Notably, the Defendant, Musa Nyagol Sule, raised no complaint that his family had not received its 50% share. The Appellant's displeasure arose from the distribution within the Arodi family, not from any breach by the Defendant.