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ELCAllowedOriginating Summons dated 13th May 2024 (Malaba PM ELC)· [2025] KEELC 7050 (KLR)

Murunga (Suing in his Personal Capacity and as the Legal Representative of the Estate of Bonface Ipomai Papa - Deceased) v Osike; Emodo & another (Interested Parties) (Enviromental and Land Originating Summons E019 of 2024) [2025] KEELC 7050 (KLR)

Environment and Land Court
16 October 2025
3,775 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Malaba Environment and Land Court set aside a land consent judgment because the parties hid a related court case over the same land.

What this practically means

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Executive summary

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Moses Murunga, as legal representative of the Estate of Bonface Ipomai Papa and in his personal capacity, filed an Originating Summons against Africanus Ikwarasi Oside claiming the land parcel North Teso/Kocholia/7312 by adverse possession. On 25th February 2025, by consent, judgment was entered for the Plaintiff as prayed, with each party bearing its own costs. Simon Idewa Barasa and Linet Aujata Emodo, who had lodged purchasers' interest cautions on the suit parcels and had sued the Defendant over the same land in Malaba ELC Case No. E003 of 2024, moved the court under Order 1 Rule 10(2), Order 45 and related provisions seeking joinder, review and setting aside of the consent judgment, and transfer and consolidation of the Malaba case. The Plaintiff opposed, arguing the causes of action differed and no review grounds existed, and citing a Notice of Appeal. The court joined the Interested Parties, finding an identifiable, non-remote stake and clear prejudice. It held the consent judgment was procured by fraud through non-disclosure of the pending Malaba litigation over the same parcel, a material fact; applying Hirani v Kassam and its progeny, it set the consent judgment and all consequential orders aside. It also found adverse possession claims lie outside the subordinate court's jurisdiction, and ordered the Malaba case transferred to the ELC for consolidation. The Plaintiff was ordered to meet the Interested Parties' costs. The court dismissed as 'hot air' the Notice of Appeal anchored on a ruling never delivered.

Key legal issues

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01

Joinder of Interested Parties

Holding

The Interested Parties were properly joined as they have an identifiable stake in the suit land, having lodged cautions claiming a purchaser's interest and occupying the land.

Reasoning

Applying Order 1 Rule 10(2) and the Supreme Court's tests in Trusted Society and Murang'atetu, the court held the parties' interest was not remote: they lodged cautions on the suit parcels, occupy the land, and family members are buried there. A decree had already been extracted over the land, so they would be prejudiced if the suit were determined without them. The court dismissed the 'joined vs enjoined' objection as mere semantics.

p. 6
02

Setting aside the consent judgment for fraud and non-disclosure

Holding

The consent judgment was set aside because the Plaintiff and Defendant failed to disclose the existence of Malaba ELC Case No. E003 of 2024 over the same land, which was a material fact amounting to fraud.

Reasoning

Relying on Hirani v Kassam, Brookebond Liebig v Mallya and Flora Wasike v Wamboko, the court held consent judgments stand unless obtained by fraud, collusion, misrepresentation or ignorance of material facts. The Plaintiff filed his adverse possession suit without disclosing the pending Malaba case over the same parcel; had the court known, it would have been slow to endorse the consent. Non-disclosure was deceitful and fraudulent, warranting review under Order 45 Rule 1(1).

p. 7
03

Transfer and consolidation of Malaba ELC Case No. E003 of 2024

Holding

The Malaba case was ordered transferred to the ELC for consolidation because the adverse possession claim in this suit is beyond the subordinate court's jurisdiction.

Reasoning

Although the pleadings in Malaba ELC Case No. E003 of 2024 were within that court's jurisdiction, the present claim is founded on adverse possession, a matter reserved to the ELC. Consolidation would avoid parallel litigation over the same parcels, so transfer was proper.

p. 7
04

Review jurisdiction despite Notice of Appeal

Holding

The court retained jurisdiction to review its own consent judgment; the Interested Parties' Notice of Appeal was invalid since no ruling had been delivered on the date it cited.

Reasoning

The court noted the Notice of Appeal dated 10th April 2025 referenced a non-existent ruling of 7th April 2025, describing it as 'hot air'. The Motion was filed promptly after the Interested Parties discovered the decree, constituting new and important matter and sufficient reason for review under Order 45 Rule 1(1).

p. 6

Legal principles established

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  • A consent judgment may be set aside where it is obtained by fraud, collusion, misrepresentation or in ignorance of material facts.
  • Fraud includes knowing concealment of a material fact, such as non-disclosure of pending litigation over the same subject matter.
  • Adverse possession claims fall outside the jurisdiction of subordinate courts.
  • An interested party is one with an identifiable, non-remote stake who will be prejudiced by a decision made without their participation.

Court orders

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  1. 1.The Interested Parties are joined in these proceedings
  2. 2.The consent judgment recorded on 25th February 2025 and all consequential orders are set aside
  3. 3.Malaba ELC Case No. E003 of 2024 is transferred to this Court for consolidation and hearing
  4. 4.The Plaintiff shall meet the costs of the Motion

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A and 18
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure RulesOrder 45 Rules 1 and 2
  • Constitution of Kenya, 2010Articles 47, 48 and 50

Cases cited (6)

  • Trusted Society of Human Rights Alliance -v- Mumo Matemu & 5 Others
    Supreme Court Petition No 12 of 2013 [2014 eKLR]
  • Francis Kariuki Muruatetu & Another -v- R and Kenya National Commission on Human Rights & 2 Others as Interested Parties
    Supreme Court Petition No 15 and 16 of 2015 consolidated [2016 KESC 12 KLR]
  • Barasa Kaneje Manya
    2020 KEHC 1 KLR
  • Hirani -v- Kassam
    1952 19 EACA 131
  • Brookebond Liebig (T) Ltd -v- Mallya
    1975 E.A. 266
  • Flora Wasike -v- Destimo Wamboko
    1982-88 I KAR 266
Jurisdiction invoked
Sections 3, 3A and 18 of the Civil Procedure Act; Order 1 Rule 10(2), Order 22 Rule 22 and Order 45 Rules 1 and 2 of the Civil Procedure Rules; Articles 47, 48 and 50 of the Constitution

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, "Murunga (Suing in his Personal Capacity and as the Legal Representative of the Estate of Bonface Ipomai Papa - Deceased) v Osike; Emodo & another (Interested Parties) (Enviromental and Land Originating Summons E019 of 2024) [2025] KEELC 7050 (KLR)", Case Analysis (2025). Originating Summons dated 13th May 2024 (Malaba PM ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7050/eng@2025-10-16

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