Willy Kihara Njoki Kanyotu v Kangaita Coffee Estate Limited & Proposed Interested Parties

3. The application was supported by the affidavit sworn by Tirus Mbugua on 14.04.2026. It was opposed by the Plaintiff through a Replying Affidavit sworn on 10.07.2026. The Applicants filed written submissions dated 23.07.2026 whereas the Plaintiff filed submissions dated 12.08.2026. B. FACTS 4. The Plaintiff and the Defendant entered into a consent dated 01.08.2024 in settlement of the present suit. The consent was subsequently adopted as an order of the court on 05.12.2024. Under the resultant decree, the Defendant was required to transfer to the Plaintiff numerous parcels of land including L.R. Nos. 11261/4, 5, 6, 10, 13, 14, 15, 23, 24, 25, 26, 28, 29, 36, 40, 41, 44, 45, 46, 47, 49, 50, 52, 53, 54, 55, 56, 57, 64, 65 and 66 together with MN/1/1535. 5. The Applicants contended that before the institution of the suit and before execution of the consent, they had acquired proprietary interests in various parcels comprised in the decree. They exhibited certificates of title, sale agreements and official searches in support of their respective claims. They averred that the Plaintiff and the Defendant were aware of those interests but failed to notify them of the proceedings and thereafter entered into a consent which directly affected properties claimed by them. 6. The Applicants consequently alleged fraud, collusion and concealment in the manner in which the consent judgment was THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 2

page 2 of 15

procured. They stated that they only discovered the existence of the present suit after making inquiries and obtaining copies of the pleadings from the court portal in April 2026. 7. The Plaintiff disputed those assertions. He contended that the court was functus officio, that the Applicants lacked locus standi ; and that Order 1 Rule 10 could not sustain joinder after final judgment. He further challenged the legality and the root of the Applicants' titles and relied upon CR 12 Form dated 08.10.2020 and a Directorate of Criminal Investigations letter dated 11.12.2024 to contend that some of the transactions were undertaken by persons who lacked authority to act for the Defendant. 8. The Plaintiff also invoked the doctrine of sub judice on the basis that some of the Applicants were parties to other proceedings, including ELC No. 088 of 2024, ELC No. 002 of 2025 and ELC No. E255 of 2025. C. ISSUES FOR DETERMINATION The court is of the view the application raises the following issues for determination: a. Whether the court is functus officio and therefore barred from considering the application; b. Whether sufficient legal basis has been established for setting aside the consent judgment dated 01.08. 2024; THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 3

page 3 of 15

c. Whether the Applicants ought to be joined to the proceedings; and d. Whether the application is barred by the doctrine of sub judice. D. THE APPLICABLE LAW 9. The doctrine of functus officio is founded upon the principle that litigation must attain finality. Once a court has conclusively determined a dispute, it cannot ordinarily re-open and re-consider the merits of its decision. The doctrine does not, however, exclude the exercise of such post-judgment jurisdiction as is recognized by law, including setting aside or review in appropriate circumstances. 10. A consent judgment similarly carries considerable finality. In Board of Trustees, National Social Security Fund v Michael Mwalo [2015] KECA 782 (KLR), the court reaffirmed the principle that a consent judgment has contractual effect and may ordinarily be set aside only upon grounds which would justify setting aside a contract, such as fraud, collusion, mistake, misrepresentation or other vitiating circumstances. 11. On joinder of parties, Order 1 Rule 10(2) of the Civil Procedure Rules empowers the court to add a person whose presence is necessary to enable it effectually and completely to adjudicate upon and settle all questions involved in the suit. THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 4

page 4 of 15

12. In Everton Coal Enterprises Limited v Karanja & 5 Others [2023] KESC 98 (KLR), the Supreme Court emphasized that joinder ordinarily contemplates subsisting proceedings. A party cannot employ Order 1 Rule 10 as a free-standing mechanism to join a suit which has been finally determined. 13. The Court of Appeal subsequently considered a materially different situation in Joseph Babu Kaangi & Pauline Nashur Babu v Munket Pulei & 8 Others, Civil Appeal No. E322 of 2023. In that case, persons whose proprietary interests had been affected by a judgment sought joinder and setting aside after judgment. The Court of Appeal observed that their application was essentially one seeking review and held that persons whose demonstrated proprietary interests were adversely affected ought to have been heard before the relevant orders were made. The judgment was consequently set aside and the matter reopened. 14. Section 26(1) of the Land Registration Act recognizes a certificate of title as prima facie evidence of proprietorship, subject to impeachment where the title was obtained through fraud or misrepresentation to which the proprietor was a party, or where it was acquired illegally, unprocedurally or through a corrupt scheme. 15. In Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR), the Supreme Court emphasized that registration does not immunize a title THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 5

page 5 of 15

whose root is shown to be unlawful. A proprietor whose title is challenged may therefore be required to demonstrate the legality of its acquisition. 16. Finally, Section 6 of the Civil Procedure Act embodies the doctrine of sub judice. As explained in Kenya National Commission on Human Rights v Attorney General, IEBC & 16 Others [2020] eKLR, the party invoking the doctrine must establish, among other matters, that the issue was directly and substantially the same in an earlier pending suit between the same parties or persons litigating under the same title before a court of competent jurisdiction. E. ANALYSIS AND DETERMINATION Whether the court is functus officio 17. The Plaintiff's objection based on functus officio would be decisive if the Applicants were merely seeking to be joined in a concluded suit. That is not, however, the substance of the Motion. The Applicants expressly sought the setting aside of the judgment itself on the ground that it adversely affected their proprietary interests which they claimed predated the suit. 18. The Everton Coal case should therefore not be read as an absolute prohibition against entertaining the present application. It prevents naked post-judgment joinder where there are no live proceedings. It does not deprive the court of jurisdiction to THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 6

page 6 of 15

determine a competent application challenging the judgment itself. 19. The logical procedural sequence is that the court first determines whether sufficient cause exists to set aside the judgment. If the judgment is set aside, the proceedings are restored and joinder can thereafter properly follow. 20. This construction gives effect to both Everton Coal and Joseph Babu Kaangi cases without placing the decisions in conflict. The latter authority is particularly persuasive in the present circumstances because it directly concerned proprietary interests of persons who had not been heard before judgment. 21. The plea of functus officio should therefore fail. Whether the consent judgment should be set aside 22. The court must approach the Applicants' allegations of fraud with caution. Fraud is a serious allegation which ordinarily requires specific pleading and strict proof. 23. The Plaintiff's challenge to the Applicants' titles cannot be determined conclusively solely on the affidavits before court. The correspondence from the Directorate of Criminal Investigations and corporate records may raise questions concerning the underlying transactions, but they do not constitute judicial determinations cancelling the Applicants' registered interests. THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 7

page 7 of 15

24. The Applicants' documents similarly do not entitle the court at this stage to declare their titles indefeasible. The competing questions of corporate authority, root of title, fraud, legality of transfer and bona fide purchase are matters more appropriately tested through pleadings and evidence in a trial. 25. The narrower and determinative question is whether persons who have demonstrated prima facie proprietary interest in parcels expressly covered by the consent judgment ought to have been heard before orders capable of affecting those interests were made. The court is the view that the Applicants ought to have been heard. 26. A consent between the Plaintiff and Defendant could conclusively settle their respective rights inter se. It could not safely operate to transfer or extinguish proprietary interests claimed by persons who were strangers to the proceedings without affording those persons an opportunity of being heard. 27. Accordingly, the court is satisfied that sufficient cause has been demonstrated to warrant setting aside the consent judgment, without making any final determination on the validity of the Applicants' titles or the allegations of fraud. Whether the Applicants ought to be joined to the proceedings and, if so, in what capacity 28. Although the Applicants described themselves as Proposed Interested Parties, the interest asserted by them was not THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 8

page 8 of 15

peripheral. They claimed ownership of the parcels which the Plaintiff sought to have transferred to himself and as well as leave to defend the suit. The court is thus satisfied that their presence is necessary for the complete and effectual adjudication of the competing proprietary claims. 29. In those circumstances, their proper procedural status is that of Defendants rather than Interested Parties. Order 1 Rule 10(2) permits the court, even on its own motion, to add a person whose presence is necessary for the complete determination of the dispute. Whether the application is defeated by the doctrine of sub judice. 30. The Plaintiff has further invoked the doctrine of sub judice on the basis that there are other proceedings involving some of the Applicants and some of the parcels comprised in the consent judgment. Unlike a case where parallel proceedings are merely alleged, the Applicants themselves exhibited, under bundle TM/7, pleadings and other court documents relating to proceedings concerning some of the subject parcels. Indeed, the supporting affidavit expressly states that TM/7 comprises pleadings filed by the Plaintiff in several other pending suits over the same subject parcels. 31. The material exhibited includes a Replying Affidavit dated 26.01.2026 and a Defence and Counterclaim dated 17.02.2026 in THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 9

page 9 of 15

Thika ELC E255 of 2025; a Ruling dated 29.01.2026 in Thika ELC E002 of 2025; and an application filed in Milimani Chief Magistrates' Court Civil Case No. E4539 of 2023. The existence of related litigation is therefore not merely speculative and must be taken into account by the court. 32. Section 6 of the Civil Procedure Act prohibits a court from proceeding with the trial of a suit or proceeding where the matter directly and substantially in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or parties under whom they claim, litigating under the same title, before a court competent to grant the relief sought. As stated by the Supreme Court in Kenya National Commission on Human Rights v Attorney General, Independent Electoral & Boundaries Commission & 16 Others [2020] eKLR, the party relying upon sub judice must establish the existence of more than one suit involving the same subject matter, that one was instituted before the other, that both are pending before courts of competent jurisdiction, and that they involve the same parties or persons claiming under them. The Plaintiff's own submissions acknowledge those constituent requirements. 33. The chronology of the proceedings is material. The instant suit is ELC E099 of 2024, whereas ELC E002 of 2025 and ELC E255 of 2025 were instituted in 2025. Those two suits therefore post-date the present suit. Even assuming that the issues and parcels substantially overlap, the subsequent suits cannot, by virtue of THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 10

page 10 of 15

Section 6, render the earlier suit sub judice. If the statutory elements are ultimately established, it would ordinarily be the subsequently instituted proceedings which would fall for stay pending determination of the earlier suit, rather than the reverse. 34. The court also observes that the materials from ELC E002 of 2025 and E255 of 2025 post-date both the consent of 01.08.2024 and its adoption on 5th December 2024. Their existence cannot, without more, establish the Applicants' allegation that the Plaintiff was aware of those particular pending proceedings at the time the consent was executed. They are nevertheless relevant in demonstrating that competing proprietary claims subsequently crystallized into litigation and that there is now a real risk of multiple courts pronouncing themselves upon related interests. 35. A different consideration arises in respect of Milimani Chief Magistrates' Court Civil Case No. E4539 of 2023, which predates the present suit. That proceeding is potentially relevant to the Section 6 inquiry and may also be relevant to the allegation that the Plaintiff had prior knowledge of competing claims before entering into the impugned consent. However, the material exhibited before this court is an application from that proceeding. An interlocutory application, without examination of the complete pleadings, the parties' respective causes of action, the precise parcels in dispute, the reliefs sought, the current status of the suit and the jurisdiction of that court over the controversy, would not THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 11

page 11 of 15

sufficient by itself to establish all the statutory elements of sub judice. 36. The court must further bear in mind that the present application has been brought by 16 Applicants asserting interests in different parcels. The fact that some of those Applicants may be parties to separate proceedings does not, without an analysis of the parties, parcels and reliefs in each suit, justify a blanket conclusion that the present application involving all sixteen Applicants is sub judice. 37. More fundamentally, the present application raises a distinct question: whether the consent judgment entered in this suit should remain in force notwithstanding the assertion that it directly affected proprietary interests of persons who were not parties to these proceedings. That question must be determined in this suit. The existence of other proceedings does not, in itself, answer the question of whether the consent judgment herein ought to be set aside. 38. The court is therefore not satisfied that the plea of sub judice constitutes a basis for dismissing the Notice of Motion dated 19.04.2026. 39. Accordingly, upon joinder of the Applicants, the parties should place before the court the complete pleadings and relevant orders in ELC E002 of 2025, ELC E255 of 2025 and Milimani Chief Magistrates' Court Civil Case No. E4539 of 2023, together with THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 12

page 12 of 15

any other related proceedings, to enable the court to determine whether any of the matters should be stayed, consolidated where legally and procedurally permissible, transferred or otherwise coordinated in such manner as to avoid parallel adjudication and conflicting decisions. F. CONCLUSION 40. The central consideration is not whether the Applicants have already established valid and indefeasible ownership. They were not been required to do so at this stage. What they have demonstrated is a prima facie and sufficiently proximate proprietary interest in properties affected by a judgment entered in proceedings in which they were not heard. 41. In the circumstances, justice shall be better served by setting aside the consent judgment and allowing the competing proprietary claims to be determined on their merits rather than permitting the consent to operate conclusively against persons who were not parties to it. G. DISPOSAL ORDERS 42. The court is thus of the opinion that the Notice of Motion dated 19.04.2026 should substantially succeed. As such, court make the following disposal orders: THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 13

page 13 of 15

a. The consent judgment dated 01.08.2024 and adopted as an order of the court on 05.12. 2024 be and is hereby set aside. b. The 1st to 16th Applicants are hereby joined to the suit as 2nd -17th Defendants respectively. c. The Plaintiff is hereby directed to file and serve an amended plaint within fourteen (14) days to reflect the joinder. d. The new defendants are hereby be granted fourteen (14) days from the date of service of the amended plaint to file and serve their respective statements of defence and any counterclaims. e. The interim stay of execution granted on 23.04.2026 and extended on 27.07.2026 is discharged as having been overtaken by the setting aside of the consent judgment. f. Costs of the application be in the cause. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 1 ST DAY OF OCTOBER 2026 Y. M. ANGIMA JUDGE In the presence of: Mr Ngara for Mr Ruiru for the Plaintiff No appearance for the Defendant THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 14

page 14 of 15

Mr Opundo for 1st – 16th Applicants Court Assistant: Hinga THIKA ELC CASE NO. E099 OF 2024 (RULING) Page 15

page 15 of 15