Applicants Case
1. The 1st Defendant/Applicant filed the instant application dated 10th April 2026 seeking the following orders;
1. Spent
2. That the Application dated 7th April be heard and relief be given expeditiously.
3. That the consent judgment entered into on the 14th of January 2026 and recorded and adapted as the judgment of the court by all parties excluding the 1st Defendant/Applicant on the 29th of January 2026 before Hon. Ombwayo J be set aside.
4. That costs of this application be borne by the Plaintiff/Respondent.
2. The Application is premised on the grounds set out therein and is supported by the affidavit of Ahmed Mohiddin, the 1st Defendant/Applicant, sworn on 10th April 2026. He depones that he lodged Appeal No. 141 of 2022 challenging the judgment delivered on 31st October 2017. According to him, the appeal was fully canvassed on its merits, and judgment was scheduled for delivery on 27th March 2026. However, he was informed by his advocate that a consent had been drawn on 14th January 2026 and later adopted by the Court. Neither him nor his advocate participated or were notified of any negotiations leading to the consent. He maintains that both he and his advocate were unaware of any mediation or settlement discussions after the hearing of the appeal. He further avers that neither he nor his advocate was served with the consent or any notice that the matter would be mentioned on 29th January 2026 for purposes of adopting the consent as the judgment of the Court. According to him, the consent judgment was procured fraudulently and that, had the Court been aware, it would have insisted on service upon his advocate. Further, the applicant states that he was not notified by the Court of Appeal of the change in the judgment delivery date from 27th March 2026 to 25th March 2026, as much as all counsel on record were aware of his advocate's email address. He therefore contends that the judgment was a sham, amounted to an abuse of the court process, and violated his constitutional right to be heard.
Respondents Case
3. In response, the 2nd Defendant states that while the suit had been instituted against both the 1st and 2nd Defendants, only the 2nd Defendant entered appearance and participated in the trial proceedings until judgment was delivered.
4. The 2nd Defendant further states that the 1st Defendant had, both before the Kadhi's Court and the Court of Appeal, acknowledged that the Plaintiff is the lawful trustee of the Wakf established by the deceased settlor, Asila Binti Mwajibu, on 19th August 1943 and registered at the Lands Titles Registry, Mombasa, as No. 2155/3 on 23rd August 1943. He therefore contends that the post-judgment consent entered into by the Wakf Trustee was for the benefit of all the beneficiaries and family members of the Wakf, including the 1st Defendant.
5. Further, the consent has since been substantially implemented through part payment of the agreed consideration and the subdivision of the suit property, with five (5) acres allocated to the family and beneficiaries of the estate of Asila Binti Mwajibu and the remaining fifteen (15) acres allocated to the 2nd Defendant in accordance with the terms of the consent. The 2nd Defendant denied any fraud or misrepresentation in the procurement of the consent and maintained that the 1st Defendant would suffer no prejudice should the consent remain undisturbed.
Submissions
6. None of the parties filed submissions.
Analysis and Determination
7. This court has considered the application and the main issue for determination is whether the consent judgment recorded on 14th January ought to be set aside.
8. The law is settled that courts have the discretion to set aside judgments. A consent judgment is however approached differently from an ordinary judgment. It is contractual in nature; therefore, it may only be interfered with on limited grounds recognized in law.
9. In Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266, the East African Court of Appeal outlined the circumstances under which a consent judgment may be set aside. The Court, adopted the decision in Hirani v Kassam [1952] 19 EACA 131, where the following passage from Senton on Judgments and Orders 7th Edition Vol 1 P 124 was approved: prima facie any order made in the presence and with the consent of the counsel is binding on all parties to the proceedings or action and those claiming under them and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court or if consent was given without sufficient material facts or in misapprehension or in ignorance of material facts or in general for a reason which would enable the court to set aside an agreement.”
10. Similarly, in Flora Wasike v Destimo Wamboko [1982–88] 1 KAR 266, the Court of Appeal held as follows i. “It is settled law that the consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract for example fraud, mistake or misrepresentation. ii. An advocate would have ostensible authority to compromise a suit or consent to a judgment so far as the opponent is concerned. iii. The court would not readily assume that judgment recorded by a Judge as being by consent was not so unless it was demonstrably shown otherwise.”
11. According to the applicant, he was a party to the appeal, having been dissatisfied with the decision of the trial court. A perusal of the Trial Court proceedings reveals that the only participants at trial were the Plaintiff and the 2nd Defendant and upon being dissatisfied, the Appeal was lodged solely by the 2nd Defendant against the Plaintiff. The Applicant was neither an Appellant nor a Respondent in the appeal. No evidence has been tendered in the application to show that he was subsequently joined as a party.
12. In the absence of any evidence demonstrating that the Applicant was a party to the appeal, the court finds that only the Plaintiff and the 2nd Defendant were competent to compromise the Appeal by recording the disputed consent. The Applicant was not party to those proceedings or better yet has not demonstrated to court he participated in the proceedings.
13. It is therefore the court’s view that the Applicant lacks basis upon which to challenge the consent on the ground that it was entered into without his participation.
14. Consequently, the application dated 10th April 2026 is hereby dismissed with costs to the 2nd Defendant.
1. The 1st Defendant/Applicant filed the instant application dated 10th April 2026 seeking the following orders;
1. Spent
2. That the Application dated 7th April be heard and relief be given expeditiously.
3. That the consent judgment entered into on the 14th of January 2026 and recorded and adapted as the judgment of the court by all parties excluding the 1st Defendant/Applicant on the 29th of January 2026 before Hon. Ombwayo J be set aside.
4. That costs of this application be borne by the Plaintiff/Respondent.
2. The Application is premised on the grounds set out therein and is supported by the affidavit of Ahmed Mohiddin, the 1st Defendant/Applicant, sworn on 10th April 2026. He depones that he lodged Appeal No. 141 of 2022 challenging the judgment delivered on 31st October 2017. According to him, the appeal was fully canvassed on its merits, and judgment was scheduled for delivery on 27th March 2026. However, he was informed by his advocate that a consent had been drawn on 14th January 2026 and later adopted by the Court. Neither him nor his advocate participated or were notified of any negotiations leading to the consent. He maintains that both he and his advocate were unaware of any mediation or settlement discussions after the hearing of the appeal. He further avers that neither he nor his advocate was served with the consent or any notice that the matter would be mentioned on 29th January 2026 for purposes of adopting the consent as the judgment of the Court. According to him, the consent judgment was procured fraudulently and that, had the Court been aware, it would have insisted on service upon his advocate. Further, the applicant states that he was not notified by the Court of Appeal of the change in the judgment delivery date from 27th March 2026 to 25th March 2026, as much as all counsel on record were aware of his advocate's email address. He therefore contends that the judgment was a sham, amounted to an abuse of the court process, and violated his constitutional right to be heard.
Respondents Case
3. In response, the 2nd Defendant states that while the suit had been instituted against both the 1st and 2nd Defendants, only the 2nd Defendant entered appearance and participated in the trial proceedings until judgment was delivered.
4. The 2nd Defendant further states that the 1st Defendant had, both before the Kadhi's Court and the Court of Appeal, acknowledged that the Plaintiff is the lawful trustee of the Wakf established by the deceased settlor, Asila Binti Mwajibu, on 19th August 1943 and registered at the Lands Titles Registry, Mombasa, as No. 2155/3 on 23rd August 1943. He therefore contends that the post-judgment consent entered into by the Wakf Trustee was for the benefit of all the beneficiaries and family members of the Wakf, including the 1st Defendant.
5. Further, the consent has since been substantially implemented through part payment of the agreed consideration and the subdivision of the suit property, with five (5) acres allocated to the family and beneficiaries of the estate of Asila Binti Mwajibu and the remaining fifteen (15) acres allocated to the 2nd Defendant in accordance with the terms of the consent. The 2nd Defendant denied any fraud or misrepresentation in the procurement of the consent and maintained that the 1st Defendant would suffer no prejudice should the consent remain undisturbed.
Submissions
6. None of the parties filed submissions.
Analysis and Determination
7. This court has considered the application and the main issue for determination is whether the consent judgment recorded on 14th January ought to be set aside.
8. The law is settled that courts have the discretion to set aside judgments. A consent judgment is however approached differently from an ordinary judgment. It is contractual in nature; therefore, it may only be interfered with on limited grounds recognized in law.
9. In Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266, the East African Court of Appeal outlined the circumstances under which a consent judgment may be set aside. The Court, adopted the decision in Hirani v Kassam [1952] 19 EACA 131, where the following passage from Senton on Judgments and Orders 7th Edition Vol 1 P 124 was approved: prima facie any order made in the presence and with the consent of the counsel is binding on all parties to the proceedings or action and those claiming under them and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court or if consent was given without sufficient material facts or in misapprehension or in ignorance of material facts or in general for a reason which would enable the court to set aside an agreement.”
10. Similarly, in Flora Wasike v Destimo Wamboko [1982–88] 1 KAR 266, the Court of Appeal held as follows i. “It is settled law that the consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract for example fraud, mistake or misrepresentation. ii. An advocate would have ostensible authority to compromise a suit or consent to a judgment so far as the opponent is concerned. iii. The court would not readily assume that judgment recorded by a Judge as being by consent was not so unless it was demonstrably shown otherwise.”
11. According to the applicant, he was a party to the appeal, having been dissatisfied with the decision of the trial court. A perusal of the Trial Court proceedings reveals that the only participants at trial were the Plaintiff and the 2nd Defendant and upon being dissatisfied, the Appeal was lodged solely by the 2nd Defendant against the Plaintiff. The Applicant was neither an Appellant nor a Respondent in the appeal. No evidence has been tendered in the application to show that he was subsequently joined as a party.
12. In the absence of any evidence demonstrating that the Applicant was a party to the appeal, the court finds that only the Plaintiff and the 2nd Defendant were competent to compromise the Appeal by recording the disputed consent. The Applicant was not party to those proceedings or better yet has not demonstrated to court he participated in the proceedings.
13. It is therefore the court’s view that the Applicant lacks basis upon which to challenge the consent on the ground that it was entered into without his participation.
14. Consequently, the application dated 10th April 2026 is hereby dismissed with costs to the 2nd Defendant.