Mahinda & 4 others v Wainaina & 4 others (Environment and Land Appeal E041 of 2024) [2026] KEELC 3983 (KLR)

1. The learned Trial Magistrate erred in law and in fact by being out rightly biased against the appellant. 2. The learned Trial Magistrate erred in law and in fact by deliberately refusing to consider the issues that have been raised on record, especially in the manner in which the appellant's case was tried. The trial magistrate shut his eyes to the errors that have been raised on the record, especially in the conduct of this matter, which was conducted unprofessionally without following due process. 3. The learned Trial Magistrate failed and/or ignored to follow and consider the principles of setting aside a purported consent order which was obtained fraudulently and/or as clearly shown on the face of the record. 4. The learned Trial Magistrate did not consider the evidence on record where it is denied by the advocates on record that they did not enter a consent order on 19/9/18 the material day where it was alleged that it was recorded by a party who was not on record. 5. The learned Trial Magistrate erred in law and in fact by shutting his eyes to the allegations of the appellant hence, he arrived at a wrong decision. 6. The learned Trial Magistrate erred in law and in facts by not considering the fact that the Respondents are sitting on the land in dispute and the title deed of the land is in their possession and at the same time they want the purchase price from the 1st appellant. 7. The learned Trial Magistrate erred in law and in fact by not appreciating that the court file has been doctored in favour of the Respondent which is against the law. 8. The Ruling of the learned Trial Magistrate did not give room to the parties to determine the case conclusively. 2. A brief background to this appeal is that the 1st Appellant had filed an application dated 4th December, 2023, seeking the setting aside of a consent judgment dated 19th September, 2018. 3. It was his case that the consent order was fraudulently recorded by an advocate he had never instructed to represent him. The 1st Appellant claimed that he was misled by the advocate and that the proceedings were unprocedurally conducted. 4. In response, the 2nd Respondent filed his replying afidavit dated 4th December, 2023, where he averred that the application was an afterthought and an abuse of the court process, as the firm of M/S Omae & Co Advocates was duly on record for the 1st and 5th Appellants and recorded the consent on their behalf. The matter was heard by way of written submission, where the Trial Magistrate, in his ruling dated 31st July, 2024, dismissed the 1st Appellant’s application. 5. The 1st Appellant being dissatisfied with the ruling, filed the current appeal. Respondent’s Submissions 6. Counsel for the Respondent filed submissions dated 28th October 2025, and identified the following issues for determination: a. Whether the Appellant has demonstrated that the consent judgment was entered without proper authority or participation and whether he has demonstrated suficient grounds such as fraud, mistake or misrepresentation to warrant setting aside the consent judgment. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3983/eng@2026-07-01 2

page 2 of 4

b. Whether the trial court erred in dismissing the Appellant’s application dated 4th December, 2023. c. Whether the appeal discloses any legal or factual error that justifies interference with the court’s ruling. d. Prayers. e. Costs. 7. On the first issue, counsel relied on Order 45 Rule 1 of the Civil Procedure Rules, Section 67(2) of the Civil Procedure Act and the case of Board of Trustees National Social Security Fund V Michael Mwalo (2015) KECA 782 (KLR) and Kenya Commercial Bank Ltd V Specialized Engineering Co. Ltd [1982] KLR 485, and submitted that consent judgment was binding, contractual in nature, and cannot be set aside since it was entered into by the counsel on record who had full instructions from the Appellants. 8. Counsel further submitted that the consent was endorsed by the court and there was no evidence of fraud, mistake, misrepresentation or a lack of authority for the same to be set aside. Further, the Appellant's delay of over five years in challenging the consent is inexcusable. 9. On the second issue as to whether the court erred in dismissing the Appellant’s application dated 4th December 2023, counsel submitted that the trial court exercised its discretion judiciously and considered the Appellant's delay and lack of credible evidence, and relied on Order 10 Rule 11 of the Civil Procedure Rules and the case of Kenya Shell Ltd V Kobil Petroleum Ltd (2006) KECA 389 (KLR). 10. On the third issue, whether the appeal discloses any legal or factual error that justifies interference with the court’s ruling, counsel submitted that the appeal was a collateral attack on a valid judgment and that the Appellant has not identified any procedural error or misapplication of law. Counsel relied on Section 78 of the Civil Procedure Act and the case of Menginya Salim Murgani V KRA (2014), and urged the court to dismiss the Appeal with costs to the Respondent. Analysis And Determination 11. The issue for determination is whether the Appeal has merit and who should bear the costs of the Appeal. 12. The 1st Appellant claims that the consent judgment entered into on 19th September, 2019 was fraudulently recorded as the advocate on record had not been formally instructed by him. The Respondent submitted that the consent was proper and that the Appellant’s claim was an afterthought. 13. The court record shows that a consent was recorded on 19th September, 2019, by counsel on record for the 1st and 5th Appellants as well as counsel for the 1st and 5th Respondent, which fact is not disputed. I have also seen a Notice of Appointment dated 13th September, 2018, found at page 30 of the Record of Appeal, and it is not in dispute that the firm of S.M Omae & Company Advocates was on record for the 1st and 5th Appellants. 14. It is also not in contention that the 1st Appellant filed a Notice to act in person on 25th September, 2019, which the Learned Trial Magistrate considered in his ruling. The Appellant filed a Notice to Act in person after an Advocate who had authority to do so had recorded the consent. The consent was thereafter adopted as an order of the court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3983/eng@2026-07-01 3

page 3 of 4

15. Order 9 Rule 5 of the Civil Procedure Rules, provides as follows: “ A Party suing or defending by an Advocate shall be at liberty to change his Advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of Advocate is filed in Court in which such cause or matter is proceedings and served in accordance with Rule 5, the former Advocate shall, subject to rules 12 and 13 be considered the Advocate of the party until the final conclusion of the cause or matter, including any review or appeal.” 16. In the case of Intercountries Importers and Exporters Limited V Teleposta Pension Scheme Registered Trustees & 5 others [2019] KECA 928 (KLR) the court held as follows: “ … a consent order will only be set aside if it can be demonstrated that it was procured through fraud, non-disclosure of material facts or mistake or for a reason which would enable a court set it aside.” 17. The Appellant has not proved that the consent was procured fraudulently and recorded by a person who did not have authority to do so. The claim does not hold water since his advocate at the time had the requisite authority to record the said consent on his behalf by virtue of the Notice of Appointment dated 13th September, 2018. 18. In the circumstances, I find that the 1st Appellant has not satisfied the requirement to set aside the consent judgment; hence, the Appeal is dismissed with costs to the Respondents. DATED, SIGNED AND DELIVERED AT NAKURU THIS 1ST DAY OF JULY 2026. M. A. ODENY JUDGE NAKURU-ELCLA NO. E041 OF 2024-JUDGMENT4 | Page https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3983/eng@2026-07-01 4

page 4 of 4