Jesang v Kemboi & 2 others

d) The 1st Defendant has since obtained crucial documents relating to the suit that vitiate the consent led in court. 3. Further, the Application is premised on a further adavit sworn on 3rd July 2026 by the 1st Defendant who stated in part that when she discovered the mistake was pointed out, she personally surrendered the title to the land’s oce for rectication. That she was subsequently issued with a Title Deed for land parcel number Nandi/Kapsengere/1557 which was a resultant subdivision from land parcel number Nandi/Kapsengere/104. That the transfer of land sent to her for signing by the surveyor did not have the title number of the property but had the photograph of the Deceased’s brother who sold me the land and his signature and identity card. She attached the documents showing surrender of the title marked as ‘NJK 2’ and annexed to the adavit. She also annexed a copy of the title and mutation marked as annexure ‘NJK 3 and NJK 4’ to her adavit. She annexed the transfer form marked as the annexure NJK 5 to the same adavit. 4. The Plainti/Respondent led her Replying Adavit sworn on 10th June 2026 through Ombiro J. Ogachi Associates opposing the Application. She averred, inter alia, that the consent was discussed in and approved in totality. That therefore, the application be dismissed and the consent be approved accordingly. 5. The 2nd and 3rd Defendants through Kwame Ramo Senior State Counsel for the Honourable Attorney General led their Grounds in supported the application by their grounds dated 9th June 2026 which include; a. They were not involved in the negotiations culminating in the impugned consent. b. The court ought not to adopt, enforce or give eect to any consent whose implementation imposes obligations upon parties who neither negotiated nor consented to its terms. c. The interests of justice require that any dispute aecting the land register be determined upon hearing all parties rather than through a consent that excludes the public ocers charged with implementing the resultant orders. 6. By a further adavit sworn on 3rd July 2026, the applicant/1st defendant the plainti/respondent wrote a letter to him revealing that the consent was entered into by misrepresentation, among others. 7. The Application was heard by way of oral submissions in addition to written submissions pursuant to Order 51 Rule 16 of the Civil Procedure Rules 2010 and the directions of the court given on 9th June 2026 and 6th July 2026. 8. Learned counsel for the applicant led her submissions dated 3rd July 2026 referring to section 80 of the Civil Procedure Act Chapter 21 Laws of Kenya that gives the power to review while Order 45 of the Civil Procedure Rules 2010 sets out the rules which restrict the grounds for review. That the said Order lay down the jurisdiction and scope of review hence, limiting review to the following grounds; i) Discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the decree was passed or the order made or; ii) On account of some mistake or error apparent on the face of the record, or; iii) For any other sucient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6169/eng@2026-09-29 2

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9. Counsel relied on the term “misrepresentation” which is dened in the Black Law’s Dictionary and the decision in the case of Brooke Bond Liebig Ltd vs Mallya [1975] EA 266 on consent judgment or orders. So, counsel submitted that the facts presented to the applicant at the time of signing the impugned consent misled her into entering the consent. She stated that the Plainti misrepresented the facts when she implied that the land in which the applicant resided and the subsequent title therein, was a result of the sub-division of land parcel number Nandi/Kapsengere/114 which gave rise to land parcel numbers Nandi/Kapsengere/1371 and 1372. She maintains that these facts were incorrect because the land which she occupied was Nandi/Kapsengere/1557 which arose from the mutation of land parcel number Nandi/Kapsengere/104 that belonged to Kipkoros Arap Okwach. 10. Orally, counsel for the applicant relied on the submissions dated 3rd July 2026 and submitted that the consent was entered into by the parties herein. 11. Learned counsel for the Plainti/Respondent led submissions dated 3rd July 2026 and contended that the consent is a self executing decision with clear consequences. That the thus, the application be dismissed. Counsel relied on the case on the case of Atogo vs Wamboye & 6 others {2025} KECA 327 (KLR) and others as per the list of authorities dated 3rd July 2026. 12. In oral submissions, learned counsel for the plainti/respondent sated that the consent was signed by the parties. That it was duly signed by the applicant who initiated the same and cannot be stopped as the applicant is engaging in mischief. 13. By the submissions dated 13th July 2026, learned counsel for the 2nd and 3rd defendants made reference to the application and the impugned consent and framed three issues for determination including whether the consent negotiated and signed by only two parties in a multi-party suit can legally bind the excluded parties. Reliance was made on the case of Hirani vs Kassam {1952} 19 EACA 131 that a consent order can be set aside on grounds including misrepresentation and Kenya Anti-Corruption Commission vs Esther Nyabare Ngare & another (2013) KLR that the lawful agreement must be between parties to the suit, among other cases. Counsel urged the Honourable court to decline to adopt the consent as an order of the court, that the same be struck out from the record and be set aside. That the application be allowed for suit to proceed to a full hearing 14. In the oral submissions, counsel for the 2nd and 3rd respondents stated that the consent cannot stand without involvement of the 2nd defendant. That the application be allowed as all parties must be included in the consent. 15. Having duly considered the application, the replying adavit, the further adavit and the written and oral rival submissions inclusive of all the authorities relied upon therein, is the application merited to entitle the applicant to the orders sought on its face? 16. From the pleadings led by the Applicant, it is clear that after the suit herein was led, the applicant accepted to sign the impugned consent. That by the time she was having these discussions, she had not shared the pleadings in the main suit with her counsel on record even though she stated that the Plainti’s counsel talked to her counsel on call during the discussions. 17. Nonetheless, in her further adavit dated 3rd July 2026, she indicates that she was told that she resided on the parcel of land that belonged to the Plainti and that she had fraudulently subdivided the same and transferred a part of it to herself. She stated that she agreed to move out of the land because according to her, there had been an error committed by her surveyor who confused the title numbers between that of the parcel number Nandi/Kapsengere/114 and that of Nandi/Kapsengere/104 which parcels of lands belonged to brothers. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6169/eng@2026-09-29 3

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18. After the Applicant agreed to leave the suit property by signing the impugned consent, she came to discover that the land in which she resided was dierent from the one that the Plainti alleged she occupied. That the surveyor confused the title numbers. 19. The applicant attached annexure ‘NJK 2’ which showed that the original title deed of L R No. Nandi/ Kapsengere/1372 had been returned for cancellation. She also attached annexures ‘NJK 3 and 4’ being copies of the mutation forms and a new title deed for parcel of land number Nandi/Kapsengere/1557 subdivided from Nandi/Kapsengere/104 which belonged to Kipkoros Arap Okwach. 20. The Land Registrar (2nd Respondent) stated in their grounds in support of the Application that it could not be ascertained that the facts prevailing on the ground at the time, were aecting the subdivision of Nandi/Kapsengere/114 into Nandi/Kapsengere/1371 and 1372. The Land Register received the requisite transfer forms and regularly processed the subdivision and transfer without knowing that there had been an error committed by the surveyor. 21. According to them, the consent be set aside because that would enable them to present their arguments in court so that this Court can give a judgment, taking into consideration all the unique facts prevailing. 22. It is important to note that misrepresentation is one of the grounds upon which the Court can set aside a consent. The Black’s Law Dictionary 10th Edition (Supra) denes the term ‘misrepresentation’ as follows; “ a false……. or misleading statement of fact…… a contract by one party to the other with the intention to induce a second party to get into a contract” 23. In her further adavit, the applicant stated that she was misled that the consent would amicably settle the matter and bring it to a closure. This court is of the view that this information was misleading. 24. Indeed, failure of the present application, this matter could have been long settled and the le closed, based primarily on the consent by parties. In her submissions, she contends that the misrepresentation came in when she was told that the property she resided at was a result of the subdivision of Nandi/ Kapsengere/114 whereas she found out later that she was not in actual occupancy of the said parcel of land. According to her, it was only an error on paper but on the ground, she was in occupancy of Nandi/Kapsengere/1557 which she bought from Kikoros Arap Okwach. 25. The plainti indicated that he had instructions to pursue criminal justice through the DCIO to deter continued intermeddling. This position is substantiated by the averments in paragraphs 5, 12 and 14 of the further adavit sworn by the Applicant. 26. Clearly, the impugned consent is in place but questioned herein. In Brooke Bond Liebig (supra), the Court of Appeal reasoned; “ A court cannot interfere with a consent Judgement except in such circumstances as would aord good ground for varying or rescinding a contract between the parties.” 27. This Court has considered the impugned consent dated 23rd March 2026 in relation to the proceedings herein. However, it did not involve the 2nd and 3rd respondents/defendants as best captured by the terms therein. It was irregularly executed with mistake and misrepresentation as alleged by the applicant as well as the2nd and 3rd defendants/respondents. 28. Wherefore, there is merit in the application dated 8th June 2026 and the same is hereby allowed thus; i. The consent signed by the parties herein dated 23rd March 2026 be set aside. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6169/eng@2026-09-29 4

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ii. The 1st Defendant be granted leave to le a defence to the Plainti’s case within the next 21 days from this date. iii. Costs of this application be in the cause. 29. This matter be set for directions on 3rd November 2026. 30. It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 29TH DAY OF SEPTEMBER 2026. HON. G M A ONGONDO JUDGE In the presence of; 1. Ms. Satia for 1st defendant/applicant 2. Mr. Ombiro learned counsel for the plainti/respondent 3. Ms. Odeyo learned counsel for the 2nd and 3rd defendants/respondents 4. Ms Emma Chepkorir, court assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6169/eng@2026-09-29 5

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