Gerald & another v Blatterman (Thro' his Attorney Shabir Hatim ali Taheri) & 2 others (Environment and Land Appeal 35 of 2022) [2025] KEELC 8063 (KLR)
The bottom line
#Kenya's Environment and Land Court cancelled a land consent judgment obtained by fraud, restoring ownership to the parties who had already won in higher courts.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Shabir Hatim Ali Taher has legal standing to pursue this suit
- 2.Whether the notice of change of advocates is properly before this court
- 3.Whether the orders sought are justified
- 4.Who should bear the costs
Key legal issues
#Locus standi of Shabir Hatim Ali Taher as attorney of the 1st respondent
The deponent has standing; the Court of Appeal has affirmed the validity and enforceability of the power of attorney and this court will not revisit it
The Court of Appeal in Malindi Civil Appeal No. E023 of 2022 ([2024] KECA 1160 (KLR)) affirmed the validity of the power of attorney held by Shabir Hatim Ali, so the trial court is bound by stare decisis and cannot reconsider the instrument's validity. Allegations that the donor died, which could have affected capacity, were unsubstantiated - no credible evidence of death was produced.
Validity of the notice of change/appointment of advocates
The notice of appointment of the current advocates is properly on record despite the earlier notice to act in person
Order 9 Rule 7 of the Civil Procedure Rules permits a party who has sued or defended in person to later appoint an advocate by giving notice. There was no evidence justifying disqualification of the notice of appointment; the appellants' objection was legally unfounded.
Whether the consent judgment of March 9, 2023 should be set aside for fraud
Yes - the consent judgment was obtained through fraud and cannot stand
The court traced a pattern of suits filed only to be compromised by consent days later, despite a final ELC judgment and Court of Appeal confirmation on ownership. The pattern of filings, consents, knowledge of adverse rulings and anomalies (possibly fictitious appellants, deceased respondents) demonstrated collusion and a calculated effort to defraud and abuse the court process.
Abuse of court process in re-litigating settled ownership
The fresh proceedings before the subordinate court were an abuse of process as ownership had been conclusively settled by the Superior Courts
The Court of Appeal judgment in Civil Appeal No. E023 of 2022 fully and finally settled ownership. Litigation must end and parties cannot reopen matters conclusively determined; the subordinate court also lacked jurisdiction to make determinations inconsistent with Superior Courts' findings.
Legal principles established
#- A consent judgment can be set aside only on grounds of fraud, collusion, absence of consensus, public policy or other grounds that would justify rescission of a contract
- Fraud must be distinctly pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt
- No party benefits from a judgment secured by fraud or misrepresentation
- The subordinate court lacks jurisdiction to make determinations inconsistent with those of the Superior Courts
- A party who sued in person may later appoint an advocate upon giving proper notice (Order 9 Rule 7 CPR)
Court orders
#- 1.The consent decree entered on March 9, 2023 is set aside as having been obtained through fraud
- 2.The registrar is directed to restore ownership of Plot No. 622 (Original No. M.17G) Malindi to Mirko Blatterman, Karl-Heinz Borner and Helmut Koster as decreed in Malindi ELC No. 27 of 2012
- 3.Costs of the application, the appeal and Malindi CMELC No. E042 of 2022 awarded to the 1st respondent against the appellants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Malindi
- Malindi CMELC No. E042 of 2022
- Jurisdiction invoked
- Appellate jurisdiction under the Environment and Land Court Act over appeal from the subordinate court (not expressly cited in the ruling)
Relief refused
#Striking out of the appeal and Malindi CMELC No. E042 of 2022 as separate relief
The application was granted 'as requested' in its entirety; the record does not distinguish a refusal
Costs
Costs of the application, the appeal and CMELC No. E042 of 2022 to be borne by the appellants.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the foregoing, I find merit in the application dated July 1, 2025. It is hereby granted as requested, with the costs of this application, appeal, and CMELC No. E042 of 2022 to be borne by the appellants.
Given the circumstances, the court determines that the consent judgment entered on March 9, 2023, was obtained through fraud and therefore cannot stand.
The subordinate court neither had nor has the jurisdiction to render determinations inconsistent with those of the Superior Courts
It also raises concerns that the appellants filed claims only to reach consent judgments a few days later, which indicates collusion or a conspiracy to mislead the court and avoid the earlier judgments.
Litigation must come to an end, and parties are not at liberty to reopen matters conclusively determined by the Superior Courts.
Issues in the judgment
#The judgment alternates between spelling variations of the 1st respondent's name (Blattermann/Blatterman/Blaetermann/Blatttermann) and the deponent's name (Taher/Shabir Hatil Ali)
The application was argued as one by the 1st respondent, yet the 1st respondent had filed a notice to act in person; the court upheld the advocate's notice of appointment dated the same day as the application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gerald & another v Blatterman (Thro' his Attorney Shabir Hatim ali Taheri) & 2 others (Environment and Land Appeal 35 of 2022) [2025] KEELC 8063 (KLR)", Case Analysis (2025). Civil Appeal No. 35 of 2022 (Malindi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8063/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.