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ELCDismissedNotice of motion dated April 7, 2025 (suit relating to Plot No. MN/III/885 CR. 21309)

Marandu & 243 others v Paul & 7 others (Enviromental and Land Originating Summons 1 of 2021) [2025] KEELC 7720 (KLR)

Environment and Land Court
4 November 2025
2,066 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This Environment and Land Court ruling at Malindi by E. K. Makori J disposes of a notice of motion dated April 7, 2025 brought by intended plaintiffs seeking to be joined as plaintiffs in a representative suit concerning Plot No. MN/III/885 CR. 21309, and to have a consent order dated May 31, 2021 and issued June 9, 2021 set aside. The applicants claimed to be among over 500 genuine squatters in adverse possession of the suit land for over twelve years, and alleged that the consent order, which transferred the land to four named individuals and 240 others, was procured through fraud, collusion, misrepresentation and material non-disclosure, excluding them without notice. The respondents opposed, contending the suit was representative (with a registered CBO and authority to sue), that the applicants were beneficiaries of the consent judgment, and that the applicants came to court without a list or authority for the 500 people they claimed to represent, and with unclean hands. The court framed three issues: joinder of the intended plaintiffs, whether the consent order could be set aside, and costs. It accepted the settled law that joinder may occur even after judgment in exceptional circumstances, and that consent judgments may be set aside on grounds vitiating a contract, including fraud and material non-disclosure. However, it found the applicants had not provided the list or authority for those they claimed to represent, noted the land was registered in favour of the four and 240 others, and held that any dispute over implementation of the resulting title was a new cause of action rather than a basis for invalidating the consent judgment. The application was dismissed with costs on November 4, 2025.

Questions the Court framed

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

  1. 1.whether the intended plaintiffs can be joined in this matter
  2. 2.whether the consent order issued by this court can be legally set aside
  3. 3.who should bear the costs of the application

Key legal issues

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01

Whether the intended plaintiffs could be joined as plaintiffs in the representative suit

Holding

Though joinder is possible even after judgment in exceptional cases, the applicants did not demonstrate entitlement to be joined as plaintiffs given the representative structure of the suit

Reasoning

The court applied the joinder test in Kingori v Chege (necessary and proper party; avoiding multiplicity) and the Court of Appeal authority permitting post-judgment joinder where a party was not heard. However, the applicants' interests were held to be sufficiently protected through the representative suit and the CBO, and their claim raised enforcement questions rather than a basis for joinder as plaintiffs.

p. 5
02

Whether the consent order could be set aside for fraud, collusion or material non-disclosure

Holding

The grounds alleged engage the settled law on variation of consent judgments, but the court declined to set aside the consent, holding the applicants' complaint concerns implementation of the resulting title, which is a new cause of action

Reasoning

Applying Samuel Mbugua Ikumbu v Barclays Bank and Flora Wasike v Destimo Wamboko, the court accepted that a consent judgment can be vitiated for fraud, collusion, illegality, mistake or material non-disclosure. But on the record the land was registered in favour of four applicants and 240 others, and the applicants lacked the list and authority for the 500 occupants they claimed to represent.

p. 5

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
  • The court's power to add a party may be exercised at any stage, including after judgment in exceptional circumstances such as where adverse orders issue against a party not given notice or heard

Court orders

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  1. 1.The application dated April 7, 2025 is dismissed with costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 45 Rule 1, Order 1 Rule 10(2) and Order 40 Rule 1 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act; Articles 40, 47, 50(1) and 62(1) of the Constitution

Relief refused

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Joinder of the intended plaintiffs as plaintiffs and setting aside/offsetting the consent order dated May 31, 2021 and issued June 9, 2021

The applicants did not provide a list or authority to represent the over 500 people they claim to represent; the suit land is registered in favour of four original applicants and 240 others; any dispute concerns enforcement of the consent judgment, a new cause of action, not invalidation of the judgment

p. 5

Costs

The application dated April 7, 2025, is hereby dismissed with costs (costs to the respondents)

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.

the application dated April 7, 2025, is hereby dismissed with costs.
p. 5final orders - dismissal of the application
If a dispute has arisen regarding its enforcement, the focus should perhaps be on how it is being enforced, rather than invalidating the entire judgment itself.
p. 5enforcement versus setting aside of consent judgment
I see this as a new cause of action, as we now have a title that can be challenged regarding its implementation following the consent judgment.
p. 5new cause of action regarding implementation of the consent
It is now settled law that a consent judgement or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
p. 4law on setting aside consent orders (as quoted from Flora Wasike v Destimo Wamboko)

Issues in the judgment

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minor

The judgment describes the applicants as 'plaintiffs/applicants' and at other points as 'interested parties/applicants', and refers to the '2nd interested party/applicant', making the parties' precise designation unclear

minor

The application is dated April 7, 2025, but the court's ruling dismissing the preliminary objection is dated October 6, 2025, while the court simultaneously states the vitiating grounds 'will be addressed substantively in their motion dated May 2, 2025', suggesting two separate motions whose relationship is unclear

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, "Marandu & 243 others v Paul & 7 others (Enviromental and Land Originating Summons 1 of 2021) [2025] KEELC 7720 (KLR)", Case Analysis (2025). Notice of motion dated April 7, 2025 (suit relating to Plot No. MN/III/885 CR. 21309). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7720/eng@2025-11-04

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