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ELCDismissed· [2025] KEELC 5899 (KLR)

Millenium Management Limited v Mbwalame & 10 others (Environment and Land Case 94 of 2016) [2025] KEELC 5899 (KLR)

Environment and Land Court
31 July 2025
EME. K. Makori
2,577 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled that once parties settle a land dispute through a signed consent order, they cannot easily undo it years later.

What this practically means

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Executive summary

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The Plaintiff, Millennium Management Limited, the registered owner of LR No. 504/4 Kilifi, moved the court by Notice of Motion dated February 28, 2025 seeking to set aside consent orders recorded on December 7, 2021 and issued on December 14, 2021, and to have the suit reopened for hearing. The application was premised on Sections 1A, 1B, 3A, 65(e) of the Civil Procedure Act and Order 10 Rule 11 of the Civil Procedure Rules. The Plaintiff, following a 2024 change of shareholding to Group Five Investments Limited, alleged that the consent had been dictated unilaterally by the Defendants' counsel in the absence of the Plaintiff's counsel, was fraudulent and collusive, allocated portions of the land to non-parties (KIWAPA and two schools) for Kshs. 30,000,000, and violated Articles 40 and 50 of the Constitution. The Defendants, through the 4th Defendant and their advocate Mr. Mwadilo, maintained that the consent was signed by counsel for both parties, adopted by the court, and partly performed, with over Kshs. 5,000,000 paid and received; they argued the application was an afterthought and that non-disclosure to incoming shareholders was a commercial dispute with the former shareholders. The court framed three issues and held that a consent order executed by counsel is binding absent proved fraud, collusion or misapprehension; that counsel's absence when the consent was recorded did not vitiate it; and that the Plaintiff's four-year acquiescence and receipt of partial performance barred it from disowning the consent. The ignorance of incoming shareholders was held not to be a ground for setting aside. The application was dismissed with costs.

Key legal issues

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01

Whether the consent order of December 2021 should be set aside

Holding

The application to set aside the consent was without merit; the consent was duly signed by counsel for both parties and adopted by the court, and no fraud, collusion, misrepresentation or lack of authority was proved

Reasoning

The consent bore the signatures of counsel for both parties; forgery or absence of authority was neither alleged nor proved. Counsel's absence when it was recorded in court did not vitiate it. The plaintiff's former management accepted over Kshs. 5,000,000 in partial performance for nearly four years without objection, amounting to acquiescence, and the ignorance of incoming shareholders is not a legal basis to overturn the consent.

p. 5
02

Whether the suit should be reopened

Holding

Having dismissed the application to set aside the consent, there was no basis to reopen the suit settled by that consent

Reasoning

The consent had fully resolved the case between the parties, with KIWAPA to purchase the property for Kshs. 30,000,000, and it had been partly performed. Since the substratum of the application failed, the ancillary prayer to reopen the suit could not stand.

p. 5

Legal principles established

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  • A consent order entered into by counsel is binding and cannot be set aside unless fraud, collusion, agreement contrary to public policy, or misapprehension/material non-disclosure is proved
  • A party cannot benefit from a consent order through partial performance and later disown it
  • Mere lack of knowledge by incoming shareholders of a consent order is not a ground to set it aside

Court orders

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  1. 1.The application dated February 28, 2025 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3A, 65(e)
  • Civil Procedure RulesOrder 10 Rule 11
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 50(1)

Cases cited (14)

  • Garvey v Richards
    [2011] JMCA 16
  • RTS Flexible Systems Ltd v Moikerei Alois Muller GmbH and Co KG
    [2010] UKSC 14
  • Housing Finance Co. of Kenya Limited v Gilbert Kibe Njuguna
    Nbi HCCC No. 1601 of 1999
  • Flora N. Wasike v Destimo Wamboko
    [1988] KLR
  • Brooke Bond Liebig (T) Ltd v Mallya
    [1975] EA 266
  • Hirani v Kassam
    [1952] 19 EACA 131
  • Central Bank of Kenya v Uhuru Highway Development Ltd and 3 Others
    Civil Appeal No. 75 of 1998
  • Rahab Wanjiru Evans v Esso (K) Ltd
    Civil Appeal No. 13 of 1995 [1995-1998] 1 EA 332
  • Attorney General v Simon Quiggrey Ogila
    [2000] eKLR
  • Peter Nzioki and another v Aron Kuvuva Kitusa
    Civil Appeal No. 54 of 1982 [1984]
  • Kenya Commercial Bank v N.J.B Hawala
    Civil Application No. 240 of 1997
  • SMN v ZMS and 3 others
    [2017] eKLR
  • Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd
    [1982] KLR 485
  • Housing Finance Co. of Kenya Ltd v Sharok Hirji
    [2021] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A, 65(e) of the Civil Procedure Act (Cap 21) and Order 10 Rule 11 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, "Millenium Management Limited v Mbwalame & 10 others (Environment and Land Case 94 of 2016) [2025] KEELC 5899 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5899/eng@2025-07-31

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