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ELCPartially AllowedNot stated in judgment

Chome & 5 others v Greenbelt Warehouses Limited (Environment and Land Case E001 of 2024) [2025] KEELC 5828 (KLR)

Environment and Land Court
12 June 2025
2,637 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan land court set aside earlier hearing orders and made a 2022 settlement agreement binding, leaving both sides to implement it without paying costs.

What this practically means

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Executive summary

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The Environment and Land Court at Kwale (L. L. Naikuni, J) ruled on a Notice of Motion dated 26th September, 2024 by Greenbelt Warehouses Limited, the Defendant/Applicant, brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The applicant sought to set aside orders issued on 12th March, 2024 by Lady Justice Matheka directing the matter to proceed to hearing, and in the alternative, that a consent dated 21st March, 2022 and filed on 29th March, 2022 be adopted as an order of the Court; alternatively that the respondents deposit Kshs 5,000,000 as security for costs. The applicant deposed, through director Ibrahim Dirye Santur, that the parties' counsels had recorded the consent and that he had paid Kshs 5,000,000 in compliance. The plaintiff, Mazera Chigamba, filed a further affidavit noting the disputed parcels (Kwale/Kigato 1414, 827 and 1423) and a related suit in Kwale ELC No. E005 of 2024. The court framed three issues: whether the orders of 12th March 2024 should be set aside; whether the consent should be adopted; and costs. Applying the principles for setting aside orders affecting land and the doctrine of consents under Order 25 Rule 5(1) and Article 159(2)(c), the court allowed the application in its entirety, set aside the hearing orders, adopted the consent as an order of the Court, fixed a mention for 21st July 2025, and made no orders as to costs despite the costs-follow-the-event principle.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the orders issued on 12th March, 2024 can and should be set aside
  2. 2.Whether the Consent dated 21st March, 2022 and filed in court on 29th March, 2022 should be adopted as an order of the Court
  3. 3.Who will bear the costs of the Notice of Motion application dated 26th September, 2024

Key legal issues

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01

Setting aside of hearing orders

Holding

The orders of 12th March, 2024 directing the matter to proceed for hearing ought to be set aside

Reasoning

The court restated the principles governing setting aside ex parte proceedings and orders: a party condemned without notice, or hampered by sufficient cause, or where the subject matter is so solemn (like land) that upholding the order would occasion grave injustice, is entitled to the remedy. Applying these principles, the court found the hearing orders should be set aside.

p. 3
02

Adoption of consent as court order

Holding

The consent dated 21st March, 2022 was adopted as an order of the Court

Reasoning

Relying on Order 25 Rule 5(1) of the Civil Procedure Rules and Article 159(2)(c) of the Constitution, the court held that a consent becomes an order of the court only upon formal adoption. The consent had been filed, and the applicant had paid Kshs 5,000,000 in compliance. No grounds such as fraud, mistake or misrepresentation existed to decline adoption.

p. 5
03

Costs of the application

Holding

No orders as to costs despite the principle that costs follow the event

Reasoning

The court acknowledged section 27(1) of the Civil Procedure Act and the principle that costs follow the event, but exercised its discretion not to award costs. The application succeeded but the court elected not to make any award of costs.

p. 5

Legal principles established

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  • A consent between litigating parties only becomes binding and attains legal character once adopted as an order or judgment of the Court
  • A consent is treated as a contract and the court cannot interfere with it except on grounds such as fraud, mistake or misrepresentation

Court orders

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  1. 1.The Notice of Motion application dated 26th September, 2024 was found to have merit and allowed in its entirety
  2. 2.An order setting aside the orders issued on 12th March, 2024 by Lady Justice Matheka directing the matter to proceed for hearing
  3. 3.The consent dated 21st March, 2022 and filed in Court on 29th March, 2022 was adopted as an order of the Court
  4. 4.A mention on 21st July, 2025 on the progress made
  5. 5.No orders as to the costs of the Notice of Motion application dated 26th September, 2024

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Costs of the application

The Court elected not to award costs despite the application succeeding

p. 5

Costs

No orders as to the costs of the Notice of Motion application dated 26th September, 2024

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Notice of Motion application dated 26th September, 2024 be and is hereby found to have merit and is allowed in its entirety.
p. 6Disposition - application allowed
That the consent dated 21st March, 2022 and filed in Court on 29th March, 2022 be and is hereby adopted as an order of this Honourable Court.
p. 6Adoption of consent
That there shall be no orders as to the cost of the Notice of Motion application dated 26th September, 2024.
p. 6Costs
It is trite that a Consent only becomes binding on parties and attains legal character once it is adopted as an order or Judgment of the Court.
p. 4Doctrine of consent orders
The remedy of setting aside Ex - Parte proceedings, decisions or orders, is available to a party who has been condemned ex parte by an irregular proceeding, decision or order
p. 3Setting aside ex parte orders

Issues in the judgment

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minor

Judgment alternates between describing the consent application as the Defendant's motion yet contains a 'Further Affidavit by the Plaintifi' supporting 'her application', suggesting a drafting error

minor

Section 27(1) of the Civil Procedure Rules Cap. 21 is mis-cited; the provision is in the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Chome & 5 others v Greenbelt Warehouses Limited (Environment and Land Case E001 of 2024) [2025] KEELC 5828 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5828/eng@2025-06-12

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