Bhai v Okelo (Enviromental and Land Originating Summons E001 of 2026) [2026] KEELC 5376 (KLR)

farming and transacting on the suit land pending determination of the substantive suit. That consent has never been varied or set aside. The lower court suit proceeded further, last fixed for hearing on 29th September 2026. 4. It is against this backdrop that the Applicant filed the present originating summons and the Notice of Motion dated 5th May 2026, seeking an order of status quo pending determination of a claim for adverse possession over the suit land. 5. Subsequent to the filing of the application, this Court issued interim directions on 12th June 2026 preserving the parties' respective occupation of the suit land pending the inter partes hearing. However, upon being apprised through the Respondent's Replying Affidavit of the subsisting consent order recorded on 10 th November 2022 governing the parties' conduct on the suit land, this Court on 8th July 2026, varied those interim orders so as to align them with the terms of that consent. The Court further directed that CM ELC No. 81A of 2022 be transferred to this Court and consolidated with the present suit. B. The Applicant’s case 6. In his Supporting Affidavit sworn on 7 th May 2026, it was the Applicant’s case that the suit land, though registered in the Respondent’s name was held by the Respondent in trust for the Applicant’s late father who was absent at the time of adjudication. RULING ELC OS NO. E001 OF 2026 2

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7. He deponed further that his father cultivated and later left the land in 1985. That he himself resumed occupation in 2006, cultivating sugarcane and later built a home on the land in 2009. He further deponed that he had remained in open, continuous and uninterrupted occupation since then, for a period exceeding sixteen years. 8. He deponed that the Respondent never objected to or interrupted his occupation until 2022, when the Respondent instituted CM ELC No. 81A of 2022 to evict him. On this basis, he claimed to have acquired rights by adverse possession under Section 38 of the Limitation of Actions Act and an overriding interest under Section 28 of the Land Registration Act. 9. In his Further Affidavit sworn on 20 th July 2026, responding to the Respondent’s Replying Affidavit, the Applicant deponed that he had not concealed the existence of CM ELC No. 81A of 2022 from this court and that the consent order annexed by the Respondent bore a different case number. He maintained that the Respondent will suffer no prejudice if status quo is maintained and that it is in the interest of justice that the orders sought be granted. C. The Respondent’s case 10. In his Replying Affidavit sworn on 29th June 2026, it was the Respondent’s case that he is the registered proprietor of the suit land which was at all material times charged to Agricultural Finance Corporation and discharged only on RULING ELC OS NO. E001 OF 2026 3

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21st November 2022. The letter of discharge was annexed as “PO-07”. 11. He deponed that he cultivated sugarcane on the suit land, which crop was destroyed by the Applicant in 2022, precipitating CM ELC No. 81A of 2022. He further deponed that the suit remained pending and that a consent order dated 10th November 2022 already governed the parties’ conduct on the suit land pending its determination. He further annexed the copy of the Consent as “PO-06”. 12. He deponed further that the Applicant had obtained a fraudulent death certificate purporting a deceased person’s identity in order to found his claim to the land, a fact he said was confirmed by forensic investigation and a police report. He deponed that the Applicant had persistently disobeyed lower court orders, resulting in contempt proceedings and a warrant of arrest issued in that other suit. He annexed the copies of the said Court Order and warrant of arrest as “PO-10” and “PO-11” respectively. 13. On this basis, the Respondent deponed that the Applicant cannot be heard to claim adverse possession over property that was the subject of pending litigation elsewhere. That the Applicant himself was in default of subsisting court orders. He maintained that the Application had not been brought in good faith, is bad in RULING ELC OS NO. E001 OF 2026 4

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law, and is an abuse of the process of the court, and ought to be dismissed with costs. D.The Applicant’s submissions 14. Counsel for the Applicant submitted that in land matters, the maintenance of status quo was closely tied to the proceedings themselves and that the court retains discretion to preserve the subject matter pending determination. Reliance was placed on Thugi River Estate Limited & another v Naitonal Bank of Kenya Limited & 3 others [2015] KEHC 5204 (KLR) and Mugah v Kunga [1988] KECA 28 (KLR). 15. On the question of conflict with the consent order, counsel submitted that the consent of 10 th November 2022 was confined to cultivation and dealings on the suit land and did not extend to occupation. Counsel submitted that since the orders sought related only to the Applicant's continued occupation, no conflict arose. 16. Counsel further submitted that costs follow the event pursuant to Section 27 of the Civil Procedure Act. E. The Respondent’s submissions 17. There were no written submissions by the Respondent in time but they finally were. The Respondent’s opposition rests on his Replying Affidavit sworn on 29 th June 2026, as summarized above. The Court considered and relied on the submissions filed late. In them he first gave the summary of the application and the steps taken therein. He then gave four issues for determination. RULING ELC OS NO. E001 OF 2026 5

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18. The first one was whether the Application satisfied the threshold for grant of status quo order. On this, he answered in the affirmative given that, to him, it is to preserve lawful existing state of affairs but cannot be employed to defeat or vary an existing court. He then argued that there was a consent order recorded on 10 th November, 2022 in Migori CM ELC No. E081A of 2022 whereby both parties agreed that after harvesting the beans, neither party would cultivate, transact upon or interfere with the suit property pending hearing of the suit. He contended that the Applicant was inviting this court to issue orders that would effectively vary or defeat a subsisting consent order without first seeking its review or setting aside. 19. The second issue was whether the Applicant had approached the court with clean hands. He argued that he had not for reason of failing to full disclosure of all material facts about the existence of an earlier consent in Migori CM ELC No. E081A of 2022 involving the same parties and the same parcel of land and also about contempt proceedings having been instituted against the Applicant leading to warrants of arrest. He relied on the case of Uhuru Highway Development Ltd v Central Bank of Kenya & Others (1996) eKLR which emphasized that courts should not encourage litigants who abuse judicial process through multiplicity of proceedings or concealment of material facts. RULING ELC OS NO. E001 OF 2026 6

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20. Regarding issue three which application violated the Consent was Order whether the dated 10 th November, he argued it did. He added that a consent judgement has contractual effect and remains binding upon parties until lawfully set aside. He relied on the case of Brooke Bond Liebig (T) Ltd v Mallya (1975) EA 266 and that of Flora N. Wasike v Destimo Wamboko (1988) eKLR, wherein the Court of Appeal, in the latter case, affirmed that a consent order binds parties unless set aside on recognized legal grounds. 21. About the fourth issue which is whether the instant suit amounted to an abuse of the court process, he submitted as much by arguing that the applicant was seeking a relief that was substantially similar to the one earlier granted. He added that courts consistently discourage parallel proceedings whose effect is to obtain conflicting orders from different courts. 22. On the issue of costs, he relied on Section 27 of the Civil Procedure Act to argued that they should be awarded to him. He prayed the application be dismissed. F. Issues for determination 23. I have considered he application, the response thereto, the further affidavit, the law and the submissions of the parties. The following issues arise for determination: i. Whether the prayers sought in the application can be granted at all given that there is a subsisting consent order over the same subject matter. RULING ELC OS NO. E001 OF 2026 7

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ii. Who should bear the costs of the application. G. Analysis and determination 24. I now determine the issues sequentially. i. Whether the prayers sought can be granted given the subsisting consent. 25. The parties’ arguments herein are that the injunction sought herein should be granted, as the applicant contends, while the other position is that to grant the orders would go against the grain of an existing consent between the parties over the same issue. I hus start by considering the import of a consent, granted that there is one. If there is, and the issues are similar, it will be obligatory on the part of the court to consider the issue above in substance. 26. The principle on consent orders was settled by the East African Court of Appeal in Hirani v Kasam [1952] 19 EACA 131 where it was held that a consent order; “Cannot be varied or discharged unless obtained by fraud or collusion or by an agreement contrary to the policy of the Court or if consent was given without sufficient material facts." The court here approved the position that any order made in the presence and with the consent of counsel binds all parties to the proceedings and those claiming under them and that such an order cannot be reopened save on the same grounds as would justify unwinding a contract. Those grounds include fraud or collusion, an agreement contrary to the policy of the court RULING ELC OS NO. E001 OF 2026 8

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or consent given without sufficient material facts, in misapprehension or in ignorance of material facts. 27. The Court of Appeal adopted this position in the leading case of Wasike v Wamboko [1985] KECA 149 (KLR). Hancox JA explained therein that it is now settled law that a consent judgment or order has contractual effect and can be set aside only on grounds that would justify setting aside a contract, or where conditions attached to it remain unfulfilled either due to fraud, mistake and misrepresentation. The same principle was applied in Kenya Commercial Bank Ltd v Specialized Engineering Company Ltd [1980] KEHC 11 (KLR) where the court affirmed this reasoning. In doing so, Harris J held that; “The marking by the court of a consent order is not an exercise to be done otherwise than on the basis that the parties fully understand the meaning of the order either personally or through their advocates, and, when made, such an order is not lightly to be set aside or varied save by consent or on one or other of the recognized grounds." 28. This view is reinforced by the broader principle that an order of a competent court must be obeyed for as long as it subsists whatever a party's view of its merits, until it is discharged through the proper channel. The English Court of Appeal explained this in Hadkinson v Hadkinson [1952] 2 All ER 567, where Romer L.J. held that it is the plain and unqualified obligation of every person against or RULING ELC OS NO. E001 OF 2026 9

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in respect of whom, an order is made by a court of competent jurisdiction to "obey it unless and until that order is discharged." This obligation extends even to a party who believes the order to be irregular or wrongly made, for so long as it stands. This principle has been consistently applied and adopted by our courts, including the Court of Appeal in Shimmers Plaza Limited v National Bank of Kenya Limited, Civil Appeal No. 33 of 2012, [2015] KECA 945 (KLR), where the court held that "obedience of court orders is not optional, rather, it is mandatory," and that parties against whom such orders are made cannot be permitted to disregard them with impunity. 29. In the instant application, there is a consent dated 10 th November 2022 in the Migori CMELC 81A of 2022 which touches on the very parcel of land in contention between the parties herein. It is only that in that case the parties herein were in the inverse order. Its import, properly construed, is the maintenance of status quo on the suit land pending the hearing and determination of the substantive suit. The orders now sought substantially overlap with the obligations already imposed by that consent. The consent was recorded before a court of competent jurisdiction and remains binding upon the parties. It has neither been varied nor set aside. 30. There is an argument which was meant to dissuade the court to think that the consent referred did not apply to RULING ELC OS NO. E001 OF 2026 10

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the suit land herein. Parties should be careful and cautioned not to deliberately mislead the court. 31. The Applicant further contended that the consent order annexed to the Respondent's Replying Affidavit and marked “PO-06” bears a different case number and should therefore be disregarded. I am not persuaded by that argument. Whether the discrepancy in the case number arose from an inadvertent error or otherwise is not determinative of the issue before this Court. The consent is between the very parties before this Court and expressly relates to the suit land herein, being Land Parcel No. KANYAMKAGO/KAWERE I/826, because it was pleaded as the land in issue. This suit parcel of land is the subject matter of both the present proceedings and the transferred suit. Its terms regulate the parties' conduct pending the determination of that dispute. In those circumstances, the discrepancy in the case number, standing on its own, does not detract from the substance, validity or legal effect of the consent. It remains binding upon the parties unless and until it is lawfully set aside or varied by a court of competent jurisdiction. It related to a suit which was and still is between the applicant and he respondent over the same parcel of land. 32. Since the consent order of 10 th November 2022 remains in force, and has neither been varied nor set aside, this court cannot grant interlocutory orders inconsistent with its terms. Such an order if granted would be contrary to RULING ELC OS NO. E001 OF 2026 11

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policy and the law. It would amount to this court rewriting the agreement of the parties herein entered into voluntarily over the same subject matter. The proper remedy for a party dissatisfied with that consent is to apply to set it aside on recognized legal grounds. No such application is before this Court. In the circumstances, the only appropriate order is to confirm this Court's interim orders as varied on 8 th July 2026 so as to align them with the terms of the consent recorded on 10 th November 2022. 33. Thus, whereas the application herein is merited to the extent of a party requesting the court to grant an injunction, the injunction can only be in tandem and in line with the consent which was entered into between the parties which is, must and ought to be the same as was entered into on 10th November 2022. Therefore, I find and direct that the terms of the consent as was entered into on 10th November 2022 are still binding between parties and are the ones to apply in the instant application case until the matter is heard and determined. Thus, the interim orders earlier given by this court on 8 th July 2026 are varied to align them with the terms of the consent order recorded on 10th November 2022. They are to be in place for a period of twelve months, pending the hearing and determination of the consolidated suit herein, and subject to extension if need be, upon reasons being given at the time of extension. RULING ELC OS NO. E001 OF 2026 12

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34. As for the costs of the application, ordinarily they follow the event under Section 27 of the Civil Procedure Act, subject to the court’s discretion for good cause. The event herein is that the court has adopted the consent which the parties had earlier bound themselves to. Thus, the parties herein shall bear their own costs. 35. The matter shall be mentioned on 7th October 2026 for confirmation of compliance with Order 11 of the Civil Procedure Rules. Trial bundles be filed and exchanged within thirty days of this ruling. 36. It is so ordered. Ruling dated, signed and delivered virtually via the Teams Platform this 3rd August 2026. HON. DR. IUR NYAGAKA JUDGE In the presence of, Ms. Apondi Advocate for the Applicant Ms. Ogutu Advocate for the Respondent RULING ELC OS NO. E001 OF 2026 13

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