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ELCDismissedNotice of Motion dated 20th March 2025 (suit property dispute, Kakamega)· [2025] KEELC 7301 (KLR)

Murunga & another v Shikhutuli (Environment and Land Case E001 of 2023) [2025] KEELC 7301 (KLR)

Environment and Land Court
15 October 2025
ANA. Nyukuri
1,097 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kakamega court refused to overturn a land dispute consent order, confirming such agreements can only be undone for fraud, misrepresentation, duress or undue influence.

What this practically means

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Executive summary

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The defendant filed a notice of motion dated 20th March 2025 seeking review, variation or setting aside of the orders of 20th February 2025, which had directed maintenance of status quo and restricted the defendant to the space he was then occupying on the suit land. The defendant argued that he was occupying the whole suit property, had grown maize and sugarcane requiring urgent tending, and that the order deprived him of his sole source of sustenance as a farmer, causing financial hardship. The plaintiff, Alice Shiundu Murunga, opposed the application, asserting ownership of the suit property (confirmed in Kakamega HC Succession Cause No. E026 of 2022 concerning her late father Murunga Kisosi) and contending that the orders sought to be reviewed were made pursuant to a consent, so the application did not meet the Order 45 threshold. The court framed a single issue: whether the applicant met the threshold for review under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. It held that no new and important matter, error apparent on the record, or sufficient reason was shown - the defendant knew at the time of the order that he was a farmer with crops on the land, and no affidavit evidenced the crops. Since the 20/02/2025 order was made by consent of both counsel, and a consent order is contractual and cannot be set aside absent fraud, misrepresentation, duress or undue influence - none demonstrated - the application was dismissed with costs to the plaintiff/respondent.

Key legal issues

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Whether the defendant met the threshold for review of the consent order of 20 February 2025

Holding

The application failed; none of the review grounds was established and the consent order could not be disturbed absent fraud, misrepresentation, duress or undue influence.

Reasoning

The applicant's sole ground was economic hardship as a farmer with crops needing tending. This was within his knowledge at the time of the order, so no new matter or mistake existed. No supporting affidavit evidenced the crops. Further, the order of 20/02/2025 was made by consent of both counsel, and a consent order is a contract that cannot be set aside absent fraud, misrepresentation, duress or undue influence, none of which was shown.

p. 3

Legal principles established

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  • A consent order is contractual in nature and cannot be set aside unless fraud, misrepresentation, duress or undue influence is demonstrated.
  • Review is restricted to the grounds in Order 45 Rule 1 - discovery of new and important matter, error apparent on the face of the record, or other sufficient reason - and must be sought without unreasonable delay.

Court orders

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  1. 1.The notice of motion dated 20th March 2025 is dismissed
  2. 2.Costs of the application awarded to the plaintiff/respondent
Jurisdiction invoked
Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules (review jurisdiction)

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 & another v Shikhutuli (Environment and Land Case E001 of 2023) [2025] KEELC 7301 (KLR)", Case Analysis (2025). Notice of Motion dated 20th March 2025 (suit property dispute, Kakamega). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7301/eng@2025-10-15

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