Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedOriginating Summons dated 5th October 2023, filed 11th October 2023 (Busia ELC)· [2026] KEELC 1098 (KLR)

Lemeh v Omania (Sued as the Legal Representative of the Estate of Omania Ongingo Kamoru) (Enviromental and Land Originating Summons E013 of 2023) [2026] KEELC 1098 (KLR)

Environment and Land Court
26 February 2026
BOBoaz N. Olao
2,289 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court refused to undo a land dispute agreement the parties had made, confirming that court-approved settlements are binding unless fraud or collusion is proven.

What this practically means

#

Executive summary

#
The Applicant, Kisero Olutele Lemeh, filed an Originating Summons claiming to have acquired 12 acres (4.856 hectares) out of land parcel No. South/Teso/Apokor/366 by adverse possession, having purchased the portion in 1986 from Omania Ogingo Kamoru, the deceased whose estate the Respondent represents. In his replying affidavit, the Respondent conceded the Applicant's occupation of 2½ acres, making the real dispute the acreage occupied. On 17th September 2024, by consent reached with the participation of counsel for both parties and prompted by the Court, the parties agreed that the Land Registrar and County Surveyor, Busia, would visit the land and determine the acreage occupied by the Applicant. The survey was eventually conducted on 12th September 2025 and a report dated 17th September 2025 compiled. The Respondent then filed a Notice of Motion dated 8th September 2025 seeking to set aside the consent order, alleging his former counsel lacked instructions and that there was collusion between the advocates. The Court applied the settled principles in Brooke Bond Liebig v Mallya and Flora N. Wasike v Destimo Wamboko that consent orders bind parties and may only be set aside for fraud, collusion, lack of consensus, public policy or grounds justifying rescission of a contract. The alleged collusion was dismissed as a fleeting, unserious remark, unsupported by reasons and undermined by the Respondent's inordinate delay of about a year and the fact that the ordered survey had already taken place. The Motion was dismissed with costs. Tags: consent orders, setting aside, civil procedure, adverse possession suit.

Key legal issues

#
01

Whether the consent order of 17th September 2024 should be set aside on the ground of alleged collusion between counsel

Holding

The consent order stands. The alleged collusion was a fleeting remark made without seriousness and unsupported by any reason; the Respondent's delay of about a year in moving the Court, and the fact that the survey ordered by consent had already been conducted, defeated the application.

Reasoning

The Court applied the settled test in Brooke Bond Liebig v Mallya and Flora N. Wasike v Destimo Wamboko that a consent order may only be set aside for fraud, collusion, absence of consensus, public policy or contractual rescission grounds. The Respondent gave no reason why his former counsel would have colluded against him. The consent was recorded with the Court prompting the parties and counsel participating. Further, the survey had already been completed and a report compiled, so the Motion was overtaken by events and filed after inordinate delay.

p. 4

Legal principles established

#
  • A consent order recorded in the presence and with the consent of counsel is binding on the parties and can only be set aside on grounds such as fraud, collusion, lack of consensus, public policy, or grounds that would justify rescission of a contract
  • An order made in the presence and with the consent of counsel binds all parties to the proceedings and those claiming under them

Court orders

#
  1. 1.The Respondent's Notice of Motion dated 8th September 2025 is dismissed
  2. 2.Costs of the Motion to the Applicant

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Civil Procedure RulesOrder 51 Rule 1
  • Constitution of KenyaArticle 50

Cases cited (3)

  • Hirani v Kassam
    1952 EACA 131
  • Brooke Bond Liebig v Mallya
    1975 EA 266
  • Flora N. Wasike v Destimo Wamboko
    1988 eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit land parcel No. South/Teso/Apokor/366; application under Sections 1A, 1B, 3 & 3A of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lemeh v Omania (Sued as the Legal Representative of the Estate of Omania Ongingo Kamoru) (Enviromental and Land Originating Summons E013 of 2023) [2026] KEELC 1098 (KLR)", Case Analysis (2026). Originating Summons dated 5th October 2023, filed 11th October 2023 (Busia ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1098/eng@2026-02-26

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