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ELCDismissedPETE312.2024-NBI (file reference as printed; suit number not otherwise stated)· [2025] KEELC 6142 (KLR)

Gambella Investment Limited v Registered Trustees of the Pentecostal Assemblies of God (Environment and Land Case E312 of 2024) [2025] KEELC 6142 (KLR)

Environment and Land Court
19 September 2025
6,027 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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The court refused to undo a settlement a church's advocate made, ruling clients are bound unless fraud, collusion, or mistake is proven.

What this practically means

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Executive summary

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The Defendant, the Registered Trustees of the Pentecostal Assemblies of God (Kenya) Church, filed two applications (dated 28/10/2024 and 29/10/2024) seeking leave for new advocates to come on record, a temporary stay of execution of decree orders stopping demolition of the Ngara church and eviction of its members, setting aside of a consent judgment and the decree of 3/10/2024 with leave to file a defence and counterclaim, and an order for cross-examination of Dr Martin Oloo Advocate on his instructions. The Defendant asserted the consent was recorded without its knowledge or authority, that Lihanda was not a trustee and was barred by court order, and that trustee signatures on the Joint Venture Agreement were forgeries. The Respondent opposed through a preliminary objection that the court was functus officio after recording the consent, grounds of opposition, and replying affidavits of Mohammed Sheikh Mohamed and Rev Patrick Lihanda, who maintained he instructed Oloo & Oloo as General Superintendent and that the JVA was properly executed. The court framed three issues. It held it was not functus officio, retaining power under section 80 of the Civil Procedure Act to set aside a consent judgment vitiated by fraud, misrepresentation, collusion or mistake. However, the Defendant failed to prove any vitiating ground: the registered Trust Deed of 6/7/2022 was unrevoked and included Lihanda, Mogita and Mudaki, no forgery was evidenced, the contempt orders did not bar Lihanda as trustee, and counsel's authority to settle is presumed absent proof of express negative direction or fraud. The court also held it lacked jurisdiction to determine church leadership. The applications were dismissed with costs.

Key legal issues

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01

Whether the court was functus officio after adopting the consent judgment

Holding

The court is not functus officio; it retains jurisdiction under section 80 of the Civil Procedure Act to review its own judgments and to set aside a consent judgment on established vitiating grounds.

Reasoning

The Respondent argued that once a consent judgment was recorded the court was functus officio and the only remedy was appeal, noting that no appeal lies from a consent decree under section 67(2) of the Civil Procedure Act. The court held that a consent order is an agreement binding on the parties, but section 80 confers power to review, and the court may set aside a consent obtained through fraud, misrepresentation, collusion or mistake, or where justice requires, so the preliminary objection failed.

p. 7
02

Whether the Defendant proved grounds to set aside the consent judgment

Holding

No. The registered Trust Deed of 6/7/2022 included Lihanda, Mogita and Mudaki as trustees, was not shown to be revoked, and in the absence of proof of fraud or express negative instructions the advocate's authority to compromise is presumed.

Reasoning

The Applicant alleged the consent was recorded without its knowledge or authority and that Lihanda was not a trustee and was barred by court order. The court found the Trust Deed of 6/7/2022 unrevoked, no evidence of forgery was presented, the contempt orders of 18/6/2021 did not bar Lihanda from acting as trustee, and no searches identified the then trustees. The court also held it lacked jurisdiction to determine church leadership, that being a matter for the High Court by petition under section 14(1) of the Trustees (Perpetual Succession) Act.

p. 10

Legal principles established

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  • A court is not functus officio after recording a consent judgment; it retains power under section 80 of the Civil Procedure Act to review or set aside a consent judgment obtained through fraud, misrepresentation, collusion or mistake, or in the interests of justice.
  • A consent judgment cannot be interfered with except on grounds that would justify rescission of a contract, such as fraud, collusion, mistake, or an agreement contrary to public policy; the burden of proof rests on the party seeking to vitiate it.
  • A duly instructed advocate has implied general authority to compromise and settle an action, and in the absence of proof of fraud or express negative direction, a consent entered by counsel binds the client.
  • Fraud must be proved on a standard above a balance of probabilities but below beyond reasonable doubt.

Court orders

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  1. 1.The applications dated 28/10/2024 and 29/10/2024 are found to be not merited
  2. 2.The applications are dismissed with costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; review power under section 80 of the Civil Procedure Act considered

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, "Gambella Investment Limited v Registered Trustees of the Pentecostal Assemblies of God (Environment and Land Case E312 of 2024) [2025] KEELC 6142 (KLR)", Case Analysis (2025). PETE312.2024-NBI (file reference as printed; suit number not otherwise stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6142/eng@2025-09-19

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