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ELCDismissedKisii High Court Judicial Review No. 30 of 2011 (Application dated 29th November 2023)

Republic v Kiriwo & 8 others (Environment and Land Judicial Review Case 8 of 2024) [2026] KEELC 3353 (KLR)

High Court of Kenya (Environment and Land Division)
28 May 2026
8,490 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~34 min to read original · ~4 min brief

The bottom line

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The Kisii High Court refused to undo a 2013 land dispute settlement because there was no evidence of fraud, and clan elders cannot join a case that was already withdrawn.

What this practically means

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Executive summary

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The 1st Interested Party, together with elders of the Kakdhimu Clan as proposed 2nd to 7th Interested Parties, applied by a notice of motion dated 29th November 2023 to set aside, vacate or nullify a consent order adopted on 6th August 2013 in Kisii Judicial Review Cause No. 30 of 2011, and to enjoin the clan elders as interested parties. They alleged the consent was entered without their authority, was procured by fraud and misrepresentation, involved a non-party (the County Government of Homa Bay) represented by the same firm as the Ex Parte Applicant, and was made without public participation over community land of about 532 acres serving some 5,000 people. The 8th Interested Party (the County Government) and the Attorney General opposed the application, contending that the court had become functus officio upon adoption of the consent, that the applicants failed to exhaust the Land Adjudication Act dispute mechanisms, that the application was an abuse of process barred by laches, and that no fraud was particularized. The court examined the record and found that the document relied on by the applicants was an unexecuted four-limbed draft consent dated 22nd July 2013; the actual consent, dated 23rd July 2013 and adopted on 6th August 2013, had only two limbs - withdrawal of the judicial review and referral of the dispute to the District Land Adjudication Officer - and was signed by all parties including the applicant personally and their counsel. It found S. O. Nyauke & Co. Advocates were duly instructed and never acted for the County Government, which merely witnessed the consent. Joinder was refused because no live proceedings existed after the withdrawal. The application was dismissed with costs to the Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the consent order entered on 6th August, 2013 should be set aside
  2. 2.Whether the proposed 2nd to 5th Interested Parties should be enjoined as interested parties to the suit
  3. 3.Who should bear the costs of the application

Key legal issues

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01

Whether the threshold for setting aside the consent order of 6th August 2013 was met

Holding

The threshold was not met; the consent was signed by all parties including the Ex Parte Applicant personally and his counsel, and no fraud or collusion was proved

Reasoning

The court compared the signatures on the consent with the applicant's affidavit signature and found them similar. The document relied on to allege fraud was a four-limbed draft consent dated 22nd July 2013 that was never executed. The actual consent of 23rd July 2013, adopted on 6th August 2013, had only two limbs - withdrawal of the judicial review and referral of the dispute to the District Land Adjudication Officer - and was signed by all parties and counsel. No Notice of Appointment showed S. O. Nyauke & Co. Advocates acted for the County Government.

p. 11
02

Whether the firm of S. O. Nyauke & Co. Advocates had authority to act for the 1st Interested Party

Holding

The firm was duly instructed under Order 9 Rules 7 and 8 of the Civil Procedure Rules; the applicant never filed a Notice of Intention to Act in Person and acknowledged the firm as his lawyer as late as October 2023

Reasoning

The firm filed a Notice of Appointment of Advocates on 23rd October 2011 and remained on record until 2023. The applicant's own affidavit showed he went to the firm's office to inquire about his case, confirming the advocate-client relationship. The applicant also personally signed the consent, and his signature matched the one on his supporting affidavit.

p. 10
03

Whether the County Government of Homa Bay was improperly made a party to the consent

Holding

The County Government was never a party to the judicial review and merely affixed its signature and stamp as a witness to what the parties had agreed

Reasoning

The court found no Notice of Appointment or appearance by S. O. Nyauke & Co. Advocates for the County Government and no acknowledgement of such representation. The County Government received no benefit under the consent, and its signature did not misrepresent or defraud any party or deprive clan members of their right to participate in the adjudication process.

p. 11
04

Whether the proposed 2nd to 7th Interested Parties should be joined

Holding

The joinder prayer was incompetent and a nullity because the judicial review proceedings had been withdrawn on 6th August 2013 and no longer existed

Reasoning

Clause 1 of the consent order effected the withdrawal of the judicial review application. The effect of withdrawal is that no suit exists any longer. Citing Masinjila and the Muruatetu principles, the court held that an interested party must have a stake in live proceedings; one cannot join a matter that has been concluded or withdrawn. The prior joinder order of 26th March 2024 was made in error.

p. 14
05

Whether the applicants' challenge was an afterthought

Holding

The application was an afterthought arising from stalled negotiations over title deeds more than ten years after the consent

Reasoning

The court observed that the adjudication record was published only fourteen days after the consent was entered, showing the clan knew of and was invited to lodge objections under the Land Adjudication Act. The applicants' discontent stemmed from the implementation of the consent, and their failure to follow the objection process meant they did not exhaust the remedies available under the Act.

p. 12

Legal principles established

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  • A consent order can only be varied or set aside where it is proved to have been obtained by fraud, collusion, agreement contrary to public policy, or given without sufficient material facts or in misapprehension of such facts
  • A person cannot be joined as an interested party in proceedings that are no longer alive, such as a suit that has been withdrawn or concluded

Court orders

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  1. 1.The application dated 29th November, 2023 is dismissed
  2. 2.Costs of the application awarded to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 47, 50 and 159 of the Constitution; sections 1A, 1B, 3A and 63 of the Civil Procedure Act; Order 9 Rule 9 and Order 51 of the Civil Procedure Rules

Relief refused

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Setting aside, vacating or nullifying the consent order issued on 6th August, 2013

The court found the consent order was properly entered, signed by all parties including their counsel, and not obtained by fraud, collusion or misrepresentation; the document relied on by the applicants was an unexecuted draft consent

p. 13

Joinder of Grifins Perprodito, Lawrence Obonyo Obinju, Joseph Ado Obwola and Michael Amula Owino as Interested Parties representing Kakdhimu Clan

The Judicial Review proceedings had been wholly withdrawn on 6th August 2013, so there were no live proceedings in which the proposed interested parties could be joined

p. 14

Costs

The application dated 29th November, 2023 is dismissed with costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is trite law that a consent order can be varied where it is proved that it has been obtained by fraud or collusion or by an agreement contrary to public policy of the court or the consent was given with insuficient material facts or in misapprehension or ignorance of material facts or in general for a reason which would enable the court to set aside an agreement
p. 8Threshold for setting aside a consent order
A Court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties
p. 8Interference with consent judgments
A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court
p. 11Binding nature of consent orders
one cannot have a stake in a nonexistent claim or suit, in the sense that he wishes to be joined in a matter that has been concluded in one way or other or withdrawn. The proceedings must be alive, and more so in the nascent stage
p. 14Joinder of interested parties in concluded proceedings
When one lies to the court he is not doing equity
p. 9Applicants' duty of candour
In the circumstance, it is this court's view that the consent order dated 6th August, 2013 was proper and this court hereby declines the invitation to set it aside. Therefore, this instant application was incompetent, fiawed and cannot not be granted
p. 13Final orders - refusal to set aside consent
The upshot of the foregoing is that the application dated 29th November, 2023 lacks merit. It is hereby dismissed with costs to the Respondents
p. 14Final orders - dismissal and costs

Issues in the judgment

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minor

Inconsistent dates for commencement of the judicial review proceedings quoted in the two consent documents

minor

The judgment refers inconsistently to the parties seeking joinder as 2nd to 5th, 2nd to 7th and 1st to 7th interested parties

minor

Inconsistency in the acreage said to have been surrendered - the supporting affidavit deposes to 532 hectares while other passages refer to 532 acres and 500 acres

minor

Contradiction in the 8th Interested Party's averments - it asserted fraud allegations were unsubstantiated while the court found the fraud claim based on an unexecuted draft; further, it described the consent as dated 22nd July, 2013 while the court found the executed consent was dated 23rd July, 2013

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, "Republic v Kiriwo & 8 others (Environment and Land Judicial Review Case 8 of 2024) [2026] KEELC 3353 (KLR)", Case Analysis (2026). Kisii High Court Judicial Review No. 30 of 2011 (Application dated 29th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3353/eng@2026-05-28

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