Nambiro & another v Wamere & 3 others (Environment and Land Appeal E020 of 2024) [2026] KEELC 688 (KLR)
The bottom line
#The Environment and Land Court in Kakamega restored two land titles taken through a fraudulent consent order and dismissed the refiled case as res judicata.
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 appellants had met the threshold for joinder
- 2.Whether the appellants had met the threshold for setting aside consent order
- 3.Whether the appellants met the threshold for grant of review orders
- 4.Whether the suit in Mumias SPMC L & E Case No. 68 of 2022 was res judicata
- 5.Whether the learned trial magistrate was wrong in dismissing the appellant's application dated 25th September 2023
Key legal issues
#Joinder of interested parties
The appellants had a necessary and identifiable stake warranting joinder; the trial court erred in holding the application overtaken by events
Order 1 Rule 10(2) empowers joinder where the party's presence enables effective determination of disputes. The appellants were registered proprietors of parcel 1226, whose title was cancelled by the consent to which they were not party. Their proprietary rights are protected under article 40 of the Constitution and cannot be taken away without due process. Execution of the order did not cure the denial of hearing.
Setting aside the consent order
The consent was procured by collusion and fraud, excluded affected parties, and was illegal as it set aside decisions of other courts
The respondents sued only the Land Registrar, who held no proprietary interest, while excluding the registered owners of parcel 1226. Previous litigation existed between the parties. The exclusion was by design to defraud the appellants. The consent also effectively overturned orders of the Chief Magistrate's court and the Court of Appeal, which a magistrate's court had no power to do, and violated the appellants' article 40 rights.
Review of the consent judgment
The appellants deserved review; deprivation of property without due process is sufficient reason
Section 80 of the Civil Procedure Act and Order 45(1) govern review. Review must be exercised cautiously, but the deprivation of the appellants' property without notice or hearing constituted an injustice amounting to sufficient reason, and the decision sought to be reviewed was anchored on collusion, fraud and illegality.
Res judicata
Mumias SPMC L&E Case No. 68 of 2022 was res judicata and was dismissed
The issue of the legality of the subdivision of parcel 1065 to create 1226 was directly and substantially determined on merit with finality in Kakakmega CMCC Case No. 626 of 1990 between the same parties, by a competent court. No orders of 8th December 2020 were shown to have been reviewed, stayed, set aside or appealed against.
Whether the trial magistrate was wrong in dismissing the application
The trial court was wrong on joinder, setting aside/review, and on the overtaken-by-events reasoning
The trial magistrate erred in declining joinder despite the identifiable stake, in failing to find collusion and illegality in the consent, and in dismissing the application as overtaken by events notwithstanding the injustice to parties condemned unheard and the suit's res judicata character.
Legal principles established
#- To be joined as an interested party an applicant must demonstrate a direct, identifiable and proximate stake in the proceedings and be affected by the outcome
- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
- A magistrate's court cannot set aside the decision of another magistrate or of the Court of Appeal; a consent effecting that is illegal
- Deprivation of property without due process is sufficient reason for review
- Res judicata elements are conjunctive; where they are met, a later suit is barred
Court orders
#- 1.The application dated 25th September 2023 is allowed
- 2.The applicants are joined to Mumias SPMC L&E Case No. 68 of 2022 as interested parties
- 3.The consent order dated 18th August 2023 and orders of 5th September 2023 together with subsequent orders thereto are reviewed, vacated and/or set aside
- 4.Entry No. 7 of the register on title for parcel No. N. Wanga/Koyonzo/1065 is reinstated and that title marked as closed
- 5.The Land Registrar, Kakamega is ordered to reinstate and maintain land title Nos. N. Wanga/Koyonzo/1226 and N. Wanga/Koyonzo/1225
- 6.The suit in the lower court, Mumias SPMC L&E Case No. E68 of 2022, is dismissed for being res judicata
- 7.Costs of the appeal and of the application in the court below awarded to the appellants, borne by the 1st to 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Mumias (SPM)
- Mumias SPMC L & E Case No. 68 of 2022
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's ruling (section 78 of the Civil Procedure Act invoked on the role of a first appellate court)
Relief refused
#Stay of the trial court proceedings
Not granted as a distinct head; the court instead allowed joinder, set aside the consent and dismissed the suit as res judicata, rendering the relief redundant
Costs
The costs of this appeal and the costs in the court below in respect to the application dated 25th September 2023 are awarded to the appellants and shall be borne by the 1st, 2nd and 3rd respondents.
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.
The application dated 25th September 2025 is hereby allowed.
The consent order dated 18th August 2023 and orders of 5th September 2023 together with subsequent orders thereto are hereby reviewed, vacated and or set aside.
The suit in the lower court being Mumias SPMC L&E Case No. E68 of 2022 is hereby dismissed for being res judicata.
To be joined to a suit as an interested party, an applicant must demonstrate that they have a direct, identifiable and proximate stake in the proceedings and that they will be afiected by the outcome of the court's decision.
It is now settled law that a consent judgment or order has a contractual efiect and can only be set aside on grounds which would justify setting a contract aside or if certain conditions remain to be fulfilled, which are not carried out.
the exclusion of the appellants in Mumias SPM CM L & E No. 68 of 2022, was not by default but by design so as to defraud the appellants of their land.
The costs of this appeal and the costs in the court below in respect to the application dated 25th September 2023 are awarded to the appellants herein and shall be borne by the 1st, 2nd and 3rd respondents.
Issues in the judgment
#The plaint is dated 25th November 2024 although the suit (Mumias SPMC Case No. 68 of 2022) predates the 2023 consent, an apparent internal inconsistency in dates
The final order refers to the application as dated 25th September 2025 whereas the application throughout the judgment is dated 25th September 2023
The Gazette Notice is cited as No. 3915 of 29th May 2025 in a suit filed and consented to before that date, an apparent date inconsistency
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nambiro & another v Wamere & 3 others (Environment and Land Appeal E020 of 2024) [2026] KEELC 688 (KLR)", Case Analysis (2026). Kakamega ELC Appeal (from Mumias SPMC L & E Case No. 68 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/688/eng@2026-02-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.