Ngoge v Otieno; Ngoge (Interested Party) (Environment and Land Case E005 of 2023) [2025] KEELC 5322 (KLR)
The bottom line
#Kenya's Environment and Land Court set aside a land consent judgment after finding a law firm secretly acted for both sides, and joined an excluded heir to the suit.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant should be enjoined as a Co-Plaintiff in the suit
- 2.Whether the consent judgment delivered on 25th October 2023 ought to be set aside
Key legal issues
#Joinder of the Applicant as Co-Plaintiff
The Applicant ought to be joined as Co-Plaintiff to safeguard the interests of his late father's estate
The court found that the consent judgment excluded other beneficiaries of the estate of Meshack Ngoge Otieno while touching on ownership of the land they were beneficiaries to. Order 1 Rule 10(2) permits joinder of any person whose presence is necessary to effectually adjudicate on all questions in the suit. Joining the Applicant would safeguard the interests of the estate of his late father.
Setting aside the consent judgment of 25th October 2023
The consent judgment was set aside as it was based on a consent entered into by collusion, misrepresentation and fraud
The Defendant, though old and sickly, signed the consent by thumb print and never filed a defence. The plaint never pleaded that the Plaintiff would hold the land in trust for the siblings, making the trust narrative an afterthought. The Plaintiff's law firm drew and filed the Defendant's Replying Affidavit, evidencing collusion. The consent was irregular, signed by a sickly and old Defendant, and the resulting judgment was improper.
Professional misconduct by the Plaintiff's law firm
The drawing and filing of the Defendant's Replying Affidavit by the Plaintiff's own law firm was collusion and the greatest height of professional malpractice
The Replying Affidavit of the Defendant bore the same font, typewriter features, email address and mobile number as the Plaintiff's documents and was drawn and filed by O. P. Ngoge & Associates, the Plaintiff's own firm. The court treated this as a choreographed plan to shield the truth and prevent the consent from being set aside, and as a sure demonstration of collusion.
Legal principles established
#- A consent judgment can only be set aside on grounds such as fraud, coercion, misrepresentation or collusion, as would justify setting aside a contract
- The court may at any stage of the proceedings order that a person who ought to have been joined be added as a party to enable the court to effectually and completely adjudicate upon all questions in the suit
- An advocate for an adverse party cannot purport to act for another adverse party in the same matter; such conduct amounts to collusion and professional malpractice
Court orders
#- 1.The application dated 9th September 2024 is allowed as prayed
- 2.The judgment delivered on 25th October 2023 is set aside as it was based on a consent entered into by collusion, misrepresentation and fraud
- 3.The Applicant is joined in the suit as a Co-Plaintiff
- 4.The Applicant is given 21 days to amend the Plaint to add himself as Co-Plaintiff, state his claim, file the Amended Plaint and serve
- 5.The suit to be mentioned on 22nd September 2025
- 6.The Plaintiff and Defendant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction over the suit; application under Order 1 Rule 10(2) of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act (Cap 21)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In light of the above consent being irregular, I find that the Judgment delivered on 25th October, 2023 was improper as it was based on a consent entered into by collusion, misrepresentation and fraud. I thus set it aside.
I find that the Applicant ought to be joined in this suit as a Co-Plaintifi to ensure that the interests of the estate of his late father are safeguarded.
The upshot is that the instant application is therefore merited and accordingly allowed as prayed. The Applicant is given 21 days to amend the Plaint to add himself as the Co-Plaintifi and state his claim and file the Amended Plaint and serve.
This is the greatest height of professional malpractice, to say the least: that an advocate for an adverse party can purport to and act for another adverse party in the same matter.
It can only be set aside on account of fraud, coercion, misrepresentation and collusion.
The Plaintifi and Defendant shall bear the costs of the application.
Issues in the judgment
#The suit land is referred to inconsistently as parcel number 384 in the application and prayers but parcel number 354 in the pleadings and evidence
The application described itself as by a proposed Interested Party while seeking to be enjoined as Co-Plaintiff; the citation and body of the application refer to an interested party
The judgment also notes the Defendant described the application as a 'gender summons' and questions the procedural form (Chambers Summons vs Notice of Motion) were raised but not resolved in the orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngoge v Otieno; Ngoge (Interested Party) (Environment and Land Case E005 of 2023) [2025] KEELC 5322 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5322/eng@2025-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.