Hussein Mohammed Ali Harazi v Elias Yeri & 8 Others

c) That pending inter partes hearing and determination of the application thereafter, the Honourable court be pleased to issue an order arresting the taxation of the Bill of Costs dated 2nd October 2025 and/or any other proceedings regarding execution. d) The Honourable court be pleased to set aside the orders issued on 30th September 2025. e) That the Honourable court be pleased to issue an order directing that another joint survey be conducted to confirm whether the Defendants have encroached and/or trespassed in the Plaintiff/Respondent’s portion of land plot No. 273 Malindi and the same be filed in court. 2. The application is premised on the grounds set out on its face and the supporting affidavit of Mohammed Hamisi Masudi sworn on even date. 3. In the said affidavit Mr. Masudi deposes that the Plaintiffs filed suit against the defendants alleging that the defendants had trespassed on his plot No. 273 Malindi. 4. The parties subsequently agreed to conduct a joint survey to establish whether the Defendants had trespassed on the Plaintiff’s land. ELC CASE NO. E060 OF 2024 (RULING) 2

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5. The Plaintiff then instructed the Sub-county surveyor who conducted a survey without the defendant’s knowledge and filed his report in court. The report did not indicate that the defendants had encroached on the plaintiff’s plot. 6. He avers that their previous advocates never informed him that the said report had been filed in court and that the survey was conducted without their knowledge or instructions. They only discovered the report had been filed and adopted by the court when they instructed the firm of Ruttoh & Associates Advocates to peruse their file. 7. He deposes that he fears that if the survey report is not set aside and the orders sought are not granted, they may be evicted from their own land. 8. The application was strenuously opposed by the Plaintiff. 9. The court directed that the application be canvassed through written submissions ad both parties filed their submissions which I have read and considered. ANALYSIS AND DETERMINATION 10. Having considered the application, the Replying affidavit and parties submissions the following issues arise for determination: i. Whether the firm of Ruttoh & Associates Advocates should come on record for the Applicants ELC CASE NO. E060 OF 2024 (RULING) 3

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11. ii. Whether the orders of 30.9.25 should be set aside iii. Whether taxation and execution should be arrested With regard to the first issue Order 9 rule 9 of the Civil Procedure Rules provides that when there is a change of advocates or when a party decides to act in person having previously engaged an advocate, after judgment has been passed such change or intention shall not be effected without an order of the court. 12. In the absence of any opposition by the Respondent the firm of Ruttoh Erica & Associates is allowed to come on record. 13. On the second issue as to whether the orders of 30.9.25 should be set aside it is important note that the said order was entered with the consent of counsel for Applicant. The principles for setting aside a consent order or judgment are now well settled. The Court of Appeal in Florah N. Wasike v Destimo Wamboko (1985) KECA 149 KLR held that a consent judgment /order has contractual effect and can only be set aside on grounds that would justify setting aside a contract (such as fraud, mistake, misrepresentation, illegality or similar vitiating factors). 14. On consents entered by counsel, the Court in Kenya Commercial Bank Ltd v Specialized Engineering Co Ltd (1985) KLR 485 held that a consent entered by counsel is binding and cannot be set aside unless obtained by fraud, collusion, ELC CASE NO. E060 OF 2024 (RULING) 4

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contrary to public policy or given in ignorance of material facts. The court took the view that an advocate generally has implied authority to compromise a suit on behalf of his client and a complaint that an advocate did not have instructions and cannot form the basis for setting aside a consent as this is a matter purely between and litigant and his advocate. 15. Among the factors that the court will take into account is the delay in filing the application for setting aside the consent. Where there is a long delay the court will normally not set aside the consent. 16. In the instant case, the Applicants applied to set aside the consent one month after it was entered into claiming that they were not informed so the question of delay does not arise. 17. It is important to note that surveys such as the one in question can be ordered by the court pursuant to sections 18 and 19 of the Land Registration Act which confer the Land Registrar with the power to determine boundary disputes. It is therefore not left to litigants to choose whether or not their boundary disputes will be determined by the Land Registrar. This is in line with the exhaustion doctrine which requires that where there exists an alternative remedy through statutory law, then it is desirable that such statutory remedy should be pursued first. ELC CASE NO. E060 OF 2024 (RULING) 5

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18. Although the court has the discretion to set aside its orders, the discretion must be exercised judiciously taking into account the circumstances of each case. On the material placed before me, I am not persuaded that there is sufficient reason to set aside the consent order entered on 30.9 2025. 19. I will now turn to the questions as to whether taxation should be arrested or execution stayed. The adoption of the consent by the court effectively concluded the matter and the court marked the matter as settled in terms of the joint survey report with costs to the Plaintiffs. 20. Having declined to set aside the consent there is no good reason to arrest the taxation or stay execution as these are logical processes upon conclusion of a suit. 21. The upshot is that the application lacks merit and it is dismissed with costs. Dated, signed and delivered virtually at Malindi this 1st day of October, 2026. J.M ONYANGO JUDGE. In the Presence of: Miss Mwangi for the Plaintiff/Respondent ELC CASE NO. E060 OF 2024 (RULING) 6

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Miss Ruto for the Defendant/Applicant Court Assistant: Happy ELC CASE NO. E060 OF 2024 (RULING) 7

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