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Court of AppealDismissedCivil Appeal No. E671 of 2022

Milestone Games Ltd v Betting Control & Licensing Board & 3 others; Ndungu (Interested Party) (Civil Appeal (Application) E671 of 2022) [2026] KECA 256 (KLR)

Court of Appeal
13 February 2026
2,538 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal refused to reopen decided issues or cancel a consent order it couldn't find on the record, and ordered the applicant to pay costs.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi disposes of a Notice of Motion dated 22nd October 2024 by interested party Paul Wanderi Ndung'u seeking two substantive orders: his joinder to Civil Appeal No. E671 of 2022 as an interested party, and the setting aside of a consent order dated '24th February 2023' by which the appeal was marked withdrawn. The dispute traces to judicial review proceedings brought by Milestone Games Ltd in 2020 challenging decisions of the Betting Control and Licensing Board concerning the 'Sportpesa' trade name and Milestone's bookmaker's licence. The interested party, who held 17% shareholding in Pevans East Africa Ltd, sought joinder in 2022; that application was dismissed on 10th February 2023, but on 11th April 2025 the Court reviewed and set aside that ruling and allowed his joinder. On the present application, the Court held that the joinder issue had already been determined and could not be revisited. On setting aside, the Court could not trace any consent order dated 24th February 2023 on the record; the only consent order on record was dated 12th February 2024, and since the impugned order and its terms were not before the Court, the relief could not issue. The application was dismissed with costs to Milestone.

Questions the Court framed

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

  1. 1.Whether the interested party should be joined to the proceedings as an interested party
  2. 2.Whether the consent order dated '24th February 2023' marking the appeal as withdrawn should be set aside

Key legal issues

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01

Joinder of an interested party already determined by the court

Holding

The prayer for joinder was res judicata, having been allowed in the ruling of 11th April 2025 reviewing the ruling of 10th February 2023

Reasoning

The Court had, on 11th April 2025, reviewed and set aside its ruling of 10th February 2023 and expressly allowed the interested party's joinder. Having determined the issue, the Court could not be asked to determine it afresh; the joinder prayer had absolutely no merit.

p. 4
02

Setting aside a consent order not on the record

Holding

The Court cannot set aside a consent order that has not been placed before it and whose terms it cannot verify

Reasoning

The Court combed through the record and could not trace a consent order dated 24th February 2023. The only consent order on record was dated 12th February 2024. No party pointed to a date error and the interested party did not apply to correct the date, so the impugned order's terms were unknown and the relief could not issue.

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Nature and sanctity of consent orders

Holding

A consent order is binding like a contract and will only be set aside on grounds such as fraud or illegality, and only when the impugned order is before the court

Reasoning

Relying on the nature of consent orders as contractual in character, the Court held it cannot casually set aside an order adopted by the parties and said to be fully implemented unless it is absolutely sure of the identity and terms of the order impugned.

p. 4

Legal principles established

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  • A consent order is sacrosanct and binding on parties unless shown to be tainted with fraud, illegality or other grounds for setting aside a contract
  • Parties are bound by their pleadings and the court cannot determine an issue not placed before it by the parties
  • A court cannot revisit and determine an issue it has already determined

Court orders

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  1. 1.The Notice of Motion dated 22nd October 2024 is dismissed
  2. 2.Costs of the application awarded to Milestone

The bench

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

majority
majority
majority
On appeal from
High Court
Judicial Review Proceedings filed 9th November 2020
Jurisdiction invoked
Appellate jurisdiction in Civil Appeal No. E671 of 2022 pending before the Court of Appeal

Relief refused

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Joinder of Paul Wanderi Ndung'u as interested party

The issue of joinder was already determined by the Court in its ruling of 11th April 2025 and cannot be revisited

p. 4

Setting aside of the consent order dated '24th February 2023'

No consent order dated 24th February 2023 exists on the record; the only consent order on record is dated 12th February 2024 and the Court cannot set aside an order whose terms it cannot ascertain

p. 5

Costs

Costs of the application awarded to Milestone

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.

By its nature, a consent order, unless proved to the satisfaction of the Court that it is tainted with fraud, illegality or any of the grounds upon which a contract may be set aside, is sacrosanct, and binding upon the parties to it.
p. 4Sanctity of consent orders
It has been held consistently in our jurisdiction that parties are bound by their pleadings and that unless they amend the pleadings, the Court cannot deal with an issue that is not before it.
p. 5Parties bound by pleadings
The issue of joinder of the interested party was addressed and determined by this Court in the ruling of 11th April 2025 and the Court cannot be asked to revisit and determine an issue it has already determined.
p. 4Finality of prior determinations
we find no merit in the interested party's notice of motion dated 22nd October 2024 and the same is dismissed with costs to Milestone. It is so ordered.
p. 5Final orders and disposition

Issues in the judgment

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material

The interested party sought to set aside a consent order dated '24th February 2023' which does not exist on the record; the only consent order on record is dated 12th February 2024

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, "Milestone Games Ltd v Betting Control & Licensing Board & 3 others; Ndungu (Interested Party) (Civil Appeal (Application) E671 of 2022) [2026] KECA 256 (KLR)", Case Analysis (2026). Civil Appeal No. E671 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/256/eng@2026-02-13

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