Kiptanui v Oyugi & 2 others; Oyugi & another (Applicant) (Suing as the Administrators of the Estate of Hezekiah Nelson Oyugi) (Environment and Land Case E004 of 2024) [2025] KEELC 6022 (KLR)

The court held that consent judgments are binding but may be set aside for fraud, collusion, irregularity or public policy. The Applicants, administrators of the estate, were never parties or served. The transfer on the green card showed non-sequential and suspicious entries after the deceased's death. Distinguishing the authorities relied on by the Plaintiff, the court noted those cases involved parties to the consent order, and aligned itself with Kisiara v Onyango where necessary parties were not heard.

Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the criteria in Joseph Njau Kingori and Departed Asians Property Custodian Board v Jaffer Brothers, the court found the administrators are necessary parties with a proprietary interest whose presence enables the court to effectually and completely adjudicate. The Land Registrar's joinder was necessary to shed light on the green card entries. The court noted joinder logically follows setting aside the consent judgment.

The court acknowledged the Plaintiff is in occupation of the suit land and balanced the parties' positions by ordering maintenance of status quo, restraining the Plaintiff from selling or disposing of the land, rather than granting the full injunction sought. This preserves the suit property pending full ventilation of the ownership dispute at trial.

The Plaintiff argued the Applicants were barred by the 12-year limitation period having taken no possession for 18 years. The court held that where fraud is alleged, time starts running from discovery of the fraud. The Applicants deponed they discovered the transfer in May 2024 upon obtaining the green card and filed promptly, and supported the allegation with a judgment in a similar case and dismissed applications in the succession cause.