Gerald & another v Blatterman (Thro' his Attorney Shabir Hatim ali Taheri) & 2 others (Environment and Land Appeal 35 of 2022) [2025] KEELC 8063 (KLR)

d. The costs of this application, the appeal, and Malindi CMELC No. E042 of 2022 be awarded to the 1st respondent against the 1st and 2nd appellants and David Mwangi Muiruri jointly and severally. 2. The application, which is based on the grounds listed therein, is supported by an afidavit sworn by Shabir Hatim Ali Taher. 3. According to the deponent, the consent judgment entered here on March 9, 2023, was obtained through fraud and misrepresentation. He stated that David Muiruri Mwangi fraudulently registered himself as the owner of Plot No. 622 (Original No. M.17G), Malindi (the suit property), instead of the respondents. This registration was canceled by this court (Olola J.) on March 17, 2022, in ELC 27 of 2012 (SH-2 is a copy of the judgment). His appeal against that judgment was also dismissed by the Court of Appeal on September 20, 2024 (SH-3 is a copy of the judgment). At the same time, David, acting through the appellants herein, filed Malindi CMELC No. E042 of 2022 against the respondents, claiming that they had sold the suit property to them through an agreement dated September 4, 2002 (SH-4 is a copy of the plaint). 4. Subsequently, the said David fraudulently obtained a consent judgment entered on May 16, 2022, transferring the suit property to the appellants (SH-5 is a copy of that consent). 5. The consent was later revoked by a ruling dated September 9, 2022 (Usui CM) (SH-6), which led to the filing of this appeal. As the deponent also stated, David fraudulently obtained a consent judgment in this appeal, entered on March 9, 2023 (SH-7), transferring the suit property to the appellants. 6. The deponent stated that on May 4, 2022, the appellants signed an acknowledgment allegedly handing over possession of the suit property to David as security for a debt (SH-8). This acknowledgment led David to file ELC E082 of 2024 against the Appellants, seeking enforcement. In that case, a consent judgment dated September 20, 2024, was also entered, transferring the suit property to David (SH-9). 7. The deponent stated that the actions described above constitute an abuse of the court process, all aimed at bypassing the findings by the ELC in Malindi ELC 27 of 2012 and the subsequent appeal, Appeal E023 of 2022. 8. The appellants opposed the application through a replying afidavit jointly sworn on July 8, 2025. They challenged the 1st respondent’s notice of change of advocates dated July 1, 2025, because the 1st respondent had filed a notice to act in person dated October 11, 2022 (EB-1), had personally prosecuted this appeal, and had signed the consent. The appellants also challenged the deponent’s power of attorney, stating that it was nullified on all issues related to the suit property, as ruled by Odeny J. on January 17, 2024 (EB-2). 9. The appellants stated that they were not parties in ELC 27 of 2012 and Appeal E023 of 2022. They only learned about David when they expressed interest in the suit property alongside David and Laguna Blue Tours & Travels Ltd. In an efiort to take control of the suit property, they paid the said company, but could not do the same for David, who then sued them in ELC E082 of 2024. They later discovered the judgment in ELC 27 of 2012, which prompted them to file CMELC E042 of 2022, in which the respondents agreed to settle the suit. 10. The appellants stated that the deponent has filed a similar application in ELC E082 of 2024. They described the allegations in the application as malicious, fictitious, and an abuse of the court process. 11. The 2nd respondent, Karl-Heinz Borner, also filed a replying afidavit sworn on July 16, 2025. He stated that the application is filled with false allegations. He noted that this court revoked the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8063/eng@2025-11-20 2

page 2 of 8

deponent’s power of attorney via its ruling of January 17, 2024 (KB-1), and that the 1st respondent himself denied it before his death in October 2024. In this appeal, the 1st respondent filed a notice to act in person (KB-2), and all parties appeared before Odeny J. in person to sign the consent. 12. The 2nd respondent challenged the deponent’s legal standing in this matter and urged the court to dismiss the application with costs. 13. The application was argued through written submissions. I acknowledge receipt of submissions from both parties and outline the following issues for the court's determination: whether Shabir Hatim Ali Taher has legal standing to pursue this suit; whether the notice of change of advocates is properly before this court; whether the orders sought are justified; and who should bear the costs. Analysis and determination 14. On locus standi, the appellants and 2nd respondent argued that the deponent lacks locus standi, citing the ruling of Odeny J. delivered on They assert that January 17, 2024, efiectively nullified the power of attorney. They also stated that the 1st Respondent, during the pendency of this appeal, denied the authority and filed a notice to act in person. In their view, the purported power of attorney, therefore, cannot support the current application. 15. Counsel representing the 1st respondent, Shabir Hatim Ali Taher, contended that a registered power of attorney may only be revoked via a registered deed of revocation, referencing Agri Seedco Ltd v Christine Chepchirchir Baig & another [2019] KESA 389 (KLR). As no such deed has been presented, he argued that the power remains in efiect. Furthermore, he stated that the Court of Appeal in Malindi Civil Appeal No. E023 of 2022 (paragraphs 38–42) upheld its validity, and accordingly, this Court is bound by the doctrine of stare decisis. 16. Locus standi refers to a party’s legal capacity to appear before the court and be heard. It is a fundamental threshold issue that, if absent, deprives a party of the right to seek any relief, regardless of how strong their claim may be. This requirement is crucial because, without locus standi, a litigant has no standing to invoke the court’s jurisdiction, and the court consequently lacks the authority to entertain or decide the case. 17. The court in the case of Law Society of Kenya v Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000, articulated that “Locus Standi signifies a right to be heard. A person must have suficient interest to establish their standing to sue in court.” 18. I have thoroughly reviewed the judgment of the Court of Appeal in Malindi Civil Appeal No. E023 of 2022. It is reported as Muiruri & 2 others v Blaetermann (Suing through Shabir Hatim Ali) & another [2024] KECA 1160 (KLR). It is clear that the appellate court afirmed the validity and enforceability of the power of attorney held by Shabir Hatim Ali. Therefore, this court shall not revisit or reconsider the question of the instrument's validity. Additionally, the allegations regarding the purported death of the 1st respondent, which could potentially afiect the deponent’s capacity to pursue the current application if proven, were not substantiated. No credible evidence was presented to support the claim of death. 19. The court record shows that the 1st respondent, Mirko Blattermann, filed a Notice to Act in Person on October 13, 2022, with the notice dated October 11, 2022. Later, a consent judgment was entered on March 9, 2023, efiectively closing this matter. Order 9 Rule 7 of the Civil Procedure Rules states that when a party, after suing or defending in person, appoints an advocate to act on their behalf, they must give notice of the appointment, and the provisions of the Order regarding a notice of change of advocate will apply to that notice with the necessary modifications. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8063/eng@2025-11-20 3

page 3 of 8

20. In this situation, the appellants’ claim that the notice of appointment of the current advocates is invalid simply because the 1st respondent previously acted in person is legally unfounded. The law clearly allows a party who initially appeared without counsel to later appoint one, as long as proper notice is given, and there is no evidence before the court to justify disqualifying the filed notice of appointment. 21. I now turn to the substantive issue, which is whether the consent judgment entered on March 9, 2023, should be set aside. 22. The principles for setting aside consent orders are well established through numerous judicial authorities, including but not limited to Brooke Bond Liebig v Mallya [1975] EA 266, where Mustafa Ag. VP stated as follows: “ The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g., on grounds of fraud or collusion, that there was no consensus between the parties, public policy, or for such reasons as would enable a court to set aside or rescind a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all the material facts and there could not have been any mistake or misunderstanding. None of the factors which could give rise to the setting aside of a consent agreement existed.” 23. In the matter of Flora N. Wasike v Destimo Wamboko [1988] eKLR, Hancox JA cited Setton's work on Judgments and Orders (7th edition), volume 1, page 124, and reafirmed that: “ Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and those claiming under them… and cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the court…; or if the consent was given without suficient material facts, or in general for a reason which would enable a court set aside an agreement.” 24. In the present case, the 1st respondent argued that the facts presented clearly lead to the conclusion that the consent was obtained fraudulently. He referred to the cases of Board of Trustees National Social Security Fund v Micheal Mwalo [2015] КЕСА 782 (KLR) and Intercountries Importers and Exporters Limited v Teleposta Pension Scheme Registered Trustees, Commissioner for Lands, Attorney General, Jubilee Insurance Company Limited, Park Avenue Investments Limited & Trust Bank Limited (In Liquidation) [2019] KECA 928 (KLR). 25. The appellants thought the allegations were malicious, false, and misleading. 26. As already established, to set aside a consent judgment, an applicant must prove fraud or collusion. It is also well known that allegations of fraud must be pleaded and proven to a standard higher than a balance of probabilities but not beyond a reasonable doubt. 27. In Arthi Highway Developers Limited v West End Butchery Limited & 6 others [2015] KECA 816 (KLR), the Court of Appeal stated: “ 53. It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8063/eng@2025-11-20 4

page 4 of 8

passage from Bullen & Leake& Jacobs, Precedent of pleadings, 13th Edition at page 427: “Where fraud is intended to be charged, there must be a clear and distinct allegation of fraud upon the pleadings, and though it is not necessary that the word fraud should be used, the facts must be so stated as to show distinctly that fraud is charged (Wallingford v Mutual Society (1880) 5 App. Cas.685 at 697, 701, 709, Garden Neptune V Occident [1989] 1 Lloyd’s Rep. 305, 308). The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see Lawrence V Lord Norreys (1880) 15 App. Cas. 210 at 221). It is not allowable to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (|Davy V Garrett (1878) 7 ch.. D. 473 at 489). “General allegations, however strong may be the words in which they are stated, are insuficient to amount to an averment of fraud of which any court ought to take notice.” See Insurance Company of East Africa vs. The Attorney General & 3 Others, Hccc135/1998. Whether there was fraud is, however, a matter of evidence.” 28. In this case, it is clear that the ownership of the suit property was thoroughly examined and decided by this court (Olola J.) in ELC 27 of 2012. The judgment was delivered on March 17, 2022, and is reported as Mirko Blaettermann & another v David Mwangi Muiruri & 2 others [2022] KEELC 795 (KLR). The court decreed as follows: “ In the premises, I hereby enter Judgment for the Plaintifi as follows: 1. A declaration is hereby issued that the proceedings in the purported case being Malindi CMCC No. 18A of 2004 and all the consequential orders thereto is null and void with no legal consequences and that the Land Registrar Mombasa do expunge entry numbers 6, 7, 8, 10 and 11 from the register in Volume L.T 21 Folio 368/4 file 3853 Land Portion No. 622 (original No. M.17G) and restore back Karl – Heinz Borner, Mirko Blaettermann and Helmut Koster as the registered proprietors of the suit premises; 2. A permanent order of injunction is hereby issued restraining the Defendants by themselves, their agents, servants, legal representatives, assigns or anyone claiming interest through them from entering, remaining in, alienating, trespassing and/or dealing with the suit property in any manner whatsoever; 3. General damages of Kshs.4,000,000/-; 4. Costs of the suit to the Plaintifi; and https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8063/eng@2025-11-20 5

page 5 of 8

5. Interest on 3 at Court rates. “ 29. The defendants then filed an appeal, Civil Appeal E023 of 2022(supra). The Court of Appeal upheld the decision by Olola J. and dismissed the appeal on September 20, 2024. 30. Interestingly, on May 4, 2022, Erich Gerald and Beatrice Wanjiku filed a suit against the respondents in the subordinate court, being CM Land Case No. 42 of 2022, claiming a purchaser’s interest in the suit property based on a sale agreement dated September 4, 2002, between themselves and the respondents. The lower court’s record shows that the respondents in this appeal entered an appearance on May 10, 2022, and filed notices to act in person, each dated May 10, 2022. Three days after entering an appearance, a consent dated May 12, 2022, was filed on May 13, 2022. A review of that consent reveals it was signed by the parties, agreeing that the suit property be registered in the names of the appellants. The court subsequently adopted the consent. 31. Shabir Hatil Ali, the applicant here, stated he was acting under the 1st respondent’s (Mirko Blatterman) power of attorney, then applied to set aside the consent judgment dated May 12, 2022. Hon. Usui CM granted this application on September 9, 2022. Notably, in the application to set aside at the lower court, the 1st respondent was represented by the firm of Khaminwa & Khaminwa Advocates. In contrast, Katsoleh & Co. Advocates represented the appellants here. 32. Dissatisfied that the lower court had set aside the consent judgment, the appellants filed this appeal on September 28, 2022. Along with the memorandum of appeal, the appellants submitted an interim application seeking interim orders, to which the respondents replied with afidavits. Upon reviewing these afidavits, it is unclear whether the respondents were represented by the firm of Khaminwa & Khaminwa Advocates at that time, as the afidavits indicate they were drafted and filed by the respondents in their personal capacities. 33. Notably, on October 13, 2022, the 1st respondent, Mirko Blatttermann, filed a notice to act in person dated October 11, 2022, withdrawing all instructions from the firm of Khaminwa & Khaminwa and any other agent. On February 21, 2023, a draft consent judgment dated February 21, 2023, was filed and eventually adopted by this court (Odeny J.) on March 9, 2023, in the following terms: a. That the subordinate court’s ruling delivered on 9th September 2022 including all orders therein be and are hereby set aside. b. That the subordinate court’s judgment consent dated 12th May 2022 and the decree dated 18th May 2022 be and are hereby upheld. c. That parties to bear their own costs. d. That this matter is hereby marked as settled amicably. e. That file be and is hereby marked as closed. 34. A review of the consent dated February 21, 2023, indicates that it was signed by the firm of Katsoleh & Co. Advocates for the appellants and by the firm of Abdulatif Abdallah Aboud & Associates Advocates for the respondents. There is a notice of appointment of advocates from Abdulatif Abdallah Aboud & Associates Advocates dated December 29, 2022. Interestingly, on the face of the consent, next to the signatures, is an oficial stamp for Obaga Muriuki Advocate, yet his notice of appointment to represent the appellants is dated and filed on July 3, 2025. 35. I have summarized the sequence of events above to make it easier to follow the fiow of activities in this case. It seems a bit unusual that the respondents chose to defend or settle the case in the lower court, https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8063/eng@2025-11-20 6

page 6 of 8

especially since the ELC had already issued a final verdict in their favor, including an award of general damages of Kshs 4,000, 000 which the COA later confirmed, as I have highlighted above. 36. 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. 37. This pattern of repeated filings, consents, and attempts to re-litigate matters already determined, coupled with the appellants’ knowledge of prior adverse rulings, points to a clear intent to defraud the respondents and abuse the court process. The evidence shows more than mere coincidence or procedural error; it demonstrates a calculated efiort to procure the suit property through deceit and manipulation of the judicial process. 38. Moreover, while it is trite that an advocate properly instructed by a client may compromise a suit on behalf of that client, the circumstances obtaining herein are, at the very least, highly irregular. The court is confronted with uncontroverted allegations that the purported appellants may not be real or identifiable persons, and that some of the respondents named are, in fact, deceased. Such anomalies, taken together with the unusual pattern of filing suits only for them to be swiftly compromised by consent, point to conduct that is not merely irregular but strongly suggestive of fraudulent manipulation of the court process. 39. The 1st respondent urges this court to set aside the impugned consent judgment and to strike out both the present appeal and the suit before the subordinate court on the ground that they constitute a deliberate and calculated abuse of the court process. 40. In this court’s considered view, the judgment of the Court of Appeal in Civil Appeal No. E023 of 2022 (supra) fully and finally settled the question of ownership of the suit property. Litigation must come to an end, and parties are not at liberty to reopen matters conclusively determined by the Superior Courts. The appellants’ subsequent attempt, whether acting independently or at the behest of other persons, to institute fresh proceedings before the subordinate court was therefore not only irregular but amounted to a clear abuse of the court process. 41. The subordinate court neither had nor has the jurisdiction to render determinations inconsistent with those of the Superior Courts, and this may well explain the precipitous manner in which the impugned consents were recorded before the trial court could interrogate the record or appreciate the true nature of the dispute before it. 42. As shown above, we are wedged in a recurring cycle of lawsuits over the same property, dating back to or before 2004. The cycle begins with allegations of procuring fraudulent legal proceedings and orders, and extends to criminal cases involving the leading actor, David Mwangi Muiruri, and his pseudo-companies. These cases trigger a series of other lawsuits. The background, summarized by the Superior Court and described earlier, has led to multiple groundless suits and court orders, often arising unexpectedly from surreptitious and subterranean consents. This resulted in a series of cases, the primary suit being ELC 27 of 2012, leading to Civil Appeal No. E023 of 2022, CMELC No. E042 of 2022, and currently Civil Appeal No. 35 of 2022, with ELC No. 82 of 2024 (awaiting a ruling today). This situation the court finds itself in is best described by Kenyans as "hii ni kuoshwa"—a term that indicates abuse and, in our case, signifies the abuse of the court process. 43. Given the circumstances, the court determines that the consent judgment entered on March 9, 2023, was obtained through fraud and therefore cannot stand. The fundamental principle is that no party benefits from a judgment secured by misrepresentation, concealment of material facts, or other fraudulent practices. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8063/eng@2025-11-20 7

page 7 of 8

44. 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. DATED, SIGNED, AND DELIVERED ELECTRONICALLY IN MALINDI ON 20TH NOVEMBER, 2025. E. K. MAKORI JUDGE In the presence of: Mr. Kongere for the 1st Respondent Happy: Court Assistant In the absence of: Mr. Obaga for the Appellants https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8063/eng@2025-11-20 8

page 8 of 8