RULING
1. The Applicant herein did file a Notice of Motion Application dated 15.01.2026 (hereinafter referred to as “the present application”) seeking the following Orders; -
a) The Application be certified urgent and service be dispensed with in the first instance.
b) There be an unconditional temporary stay of execution of the Judgement of the Court delivered on the 23.06.2025 and all the consequential orders issued thereof pending the hearing and determination of this Application inter-partes.
c) This Honourable Court be pleased to direct the Land Registrar, Uasin Gishu and the County Surveyor to halt the cancellation of the titles to the parcels of land namely;
LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/2, LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/3, LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/4 and LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/5 pending the hearing and determination of this Application inter-partes.
d) This Honourable Court be pleased to set-aside the judgement delivered by the Court on 23.06.2025 and all other consequential orders and/or proceedings arising therefrom unconditionally.
e) That upon setting aside the Judgement entered on the 23.06.2025, this Honourable Court be pleased to join JIMMY KIPKOECH MISOI who is the Applicant herein as a party to this suit as a Defendant to the Counter-claim.
f) This Honourable court be pleased to order the suit herein to start de novo.
g) Costs of this application to be provided for.
2. The grounds in support of the prayers above are outlined in the body of the present Application as well as the Supporting Affidavit in support of the same sworn on the 15.01.2026, which can be summarized as follows; -
i. The Applicant did state that he was aggrieved by the Judgement pronounced by this Court on the 23.06.2025.
ii. The Applicant did plead that the effect of the Judgement pronounced on the 23.06.2025 did result to the cancellation of a number of titles namely LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5.
iii. The Applicant did aver that he is the lawful and legitimate owner of the property known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/3.
iv. However, the Applicant was not aware of the proceedings before the Court as he was not a substantive party thereof and therefore the Judgement pronounced by this Court on the 23.6.2025 to interfere with his ownership rights without being given a hearing thereof.
v. The Applicant was of the view that the 1st and 2nd Plaintiffs herein did not have the legal capacity and/or authority to enter into a consent in regards to the properties in issue, whose owners were not even parties in the said proceeding.
vi. In essence, the Applicant did aver that the Judgement pronounced on the 23.06.2025 was not sustainable in law since it was made by persons that did not have the legal authority and/or capacity to record a consent are regards the properties registered in the name of the Applicant and the other registered owners.
vii. The Applicant did further plead that due to the omissions outlined hereinabove, the Judgement pronounced on the 23.06.2025 was null and void and should therefore be set-aside unconditionally.
viii. Thereafter, the Applicant did seek to be joined as a party in these proceedings for purposes of fully adjudicating the dispute thereof on its merit.
ix. The Applicant was of the view that there would be no prejudice occasioned to either the 1st and 2nd Plaintiff and/or the Defendant if the Judgement pronounced on the 23.06.2025 was set-aside and the matter begins de novo in the interest of justice.
3. The present Application was duly served on the 1st and 2nd Plaintiffs herein as well as the Defendant thereof.
4. The 1st and 2nd Plaintiffs did file a Replying Affidavit dated 06.03.2026 in support of the present Application.
5. In their Replying Affidavit dated 06.03.2026, the 1st and 2nd Plaintiffs did state as follows; -
I. Indeed, the present suit was determined through a Consent Judgement recorded before the Court on the 23.06.2025.
II. However, the 1st and 2nd Plaintiff were not aware that the Consent Judgement recorded in court on the 23.06.2025 did include the properties known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5 which includes the Applicant’s property and the reinstatement of the original property known as LR.NO.8405/1.
III. The 1st and 2nd Plaintiffs therefore were of the view that they did not appreciate the full extent of the Consent Judgement recorded in Court on the 23.06.2025 and had in fact no authority to include the cancellation of the properties known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5 which included the asset of the Applicant or the other sons.
IV. In conclusion thereof, the 1st and 2nd Plaintiffs did pray to this Court that the Consent Judgement recorded on the 23.06.2025 be allowed in the interest of justice and the matter be heard on merit.
6. The Defendant on the other hand did oppose the present Application by filing a Replying Affidavit dated 02.03.2026.
7. In the Replying Affidavit dated 02.03.2026, the Defendant did oppose the present Application on the following grounds; -
i. To begin with, the Defendant did plead that the present Application was made in bad faith, fatally and incurable defective, bad in law, misconceived and an abuse of the court process hence should be dismissed with costs.
ii. According to the Defendant, the Applicant in the present Application was one of the sons of the 1st Plaintiff and a brother to the 2nd Plaintiff herein.
iii. The Defendant did also disclose that he was a family member by virtue of being a brother to the 1st Plaintiff and an uncle to both the 2nd Plaintiff herein and the Applicant.
iv. The Defendant did further disclose that the original property known as LR.NO.8405/1 which created the property known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5 was a family property.
v. However, the 1st Plaintiff herein did without procedure alter the registered owners of the property LR.NO.8405/1 by removing the name of the Defendant from the said property and thereafter did sub-divide it into five portions namely LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5 which he did then register in his name and those of his sons including the Applicant herein.
vi. It was upon the sub-division of the original property known as LR.NO.8405/1 and the sub-divisions thereof namely LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5 registered in the names of the 1st Plaintiff and his sons who include the 2nd Plaintiff and the Applicant herein that the present suit was filed.
vii. The Defendant herein did challenge the sub-division of the original property known as LR.NO.8405/1 and the subsequent sub-divisions creating LR. NO. KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, 2, 3, 4 and 5 registered in the name of the 1st Plaintiff and the sons who included the 2nd Plaintiff and the Applicant herein as being unlawful, null and void.
viii. After a protracted litigation of over 14 years, the 1st and 2nd Plaintiffs as well as the Defendant did record a Consent Judgement on the 23.06.2025 which did nullify the deletion of the Defendant’s name as a co-owner of the property known as LR.NO.8405/1 and the subsequent sub-division and creation of the five portions namely LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5, which had been recorded in the names of the 1st and 2nd Plaintiffs, as well as the Applicant herein, and reinstate the original property known as LR.NO.8405/1 in the names of the 1st Plaintiff as well as the Defendant herein.
ix. The Defendant did further disclose that the original property known as LR.NO.8405/1 is occupied in equal portions by the 1st Plaintiff and his family and the Defendant with his family.
x. The Defendant therefore was of the considered view and finding that the Applicant herein did not have any specific portion of land which he was in occupation that an eviction can be carried out and prejudice his ownership rights based on the Consent Judgement recorded on the 23.06.2025.
xi. In essence, the Defendant did plead that the Applicant was an agent and/or person holding a portion of the 1st Plaintiff’s property which had been unlawfully created and transferred to him.
8. The Replying Affidavit by the Defendant herein was duly served on the Applicant who did file a Supplementary Affidavit dated 11.03.2026 in response thereof.
9. The Applicant did seek to respond to the Replying Affidavit filed by the Defendant on the following grounds; -
i. First and foremost, the Applicant did disclose that the original property known as LR.NO.8405/1 had been registered in the names of GANJI PATEL and the Late SAMUEL KIMISOI BARGORIA in the ratio of two thirds to one third respectively.
ii. Upon the demise of the late SAMUEL KIMISOI BARGORIA, GANJI PATEL did offer the portion measuring one third formerly owned by SAMUEL KIMISOI BARGORIA to the 1st Plaintiff for purchase pursuant to the Agreements for Sale 20.04.1971 and the other supporting documents thereof.
iii. The Applicant did admit the existence of the proceedings known as NAIROBI HIGH COURT SUCCESSION CAUSE NO. 47 OF 1971 relating to the Estate of the late SAMUEL KIMISOI BARGORIA which is yet to be concluded and the assets thereof are held by the Public Trustee based on a Letter dated 04.03.2026.
iv. The Applicant therefore did object to the Court distributing the original property known as LR.NO.8405/1 by one third going to the Estate of the late SAMUEL KIMISOI BARGORIA and the remaining ratio of two thirds going to the 1st Plaintiff and the Defendant herein.
v. The Applicant did state that it was the 1st Plaintiff that had sub-divided a ratio of two thirds of the original LR.NO.8405/1 to his sons including the 2nd Plaintiff and the Applicant herein.
vi. As such, it would only be fair and just that the sons who are the beneficiaries of the portions known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5 should be joined to this suit so as to be granted a hearing before the issues therein are determined.
10. In addition to the Supplementary Affidavit sworn on the 11.03.2026, the Applicant did further file a Further Affidavit dated 18.03.2026 of which he did further state as follows; -
i. The Applicant did admit that he was a son to the 1st Plaintiff and a brother to the 2nd Plaintiff.
ii. However, the Applicant was of the view that his relationship with the 1st Plaintiff did not negate the legality and/or his registration as the proprietor of the property known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/3.
iii. The Applicant therefore did state that the Consent Judgement recorded on the 23.06.2025 did affect his legal rights as the owner of the property known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/3 yet he was not a party to the said suit.
iv. The Applicant did aver that the Counsel who was representing the 1st and 2nd Plaintiffs herein did lack any instructions from him to record any consent that was in relation to the property known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/3 which was registered in his name.
v. According to the Applicant, the issue of the ownership of the original LR.NO.8405/1 and the subsequent sub-division thereof is a complex matter which ought to be heard on merit and his title should not be cancelled without being given an opportunity to participate in the same.
vi. In conclusion thereof, the Applicant did seek this Court to grant the prayers sought in the present Application.
11. The Court after receipt of all the documents above did direct that the present Application would be heard by way of written submissions.
12. Based on these directions, the Applicant did file his submissions dated 10.04.2026 while the Defendant did file his submissions dated 14.04.2026.
13. The Court has indeed carefully perused the present Application, the Affidavits filed by the parties therein and the submissions thereof and identifies the issues for determination as follows; -
ISSUE NO.1- WHETHER OR NOT THE APPLICANT HAS DEMONSTRATED SUFFICIENT GROUNDS TO WARRANT THE SETTING-ASIDE OF THE CONSENT JUDGEMENT RECORDED ON THE 23.06.2025?
ISSUE NO. 2 - WHETHER APPLICANT IS A NECESSARY PARTY IN THE PRESENT PROCEEDINGS BEFORE COURT?
ISSUE NO. 3 – WHETHER THE PRESENT APPLICATION IS MERITED OR NOT?
ISSUE NO.4- WHO BEARS THE COSTS OF THE PRESENT APPLICATION?
14. The Court duly having identified the above issues for determination, the same will now be discussed as provided for hereinbelow.
ISSUE NO.1- WHETHER OR NOT THE APPLICANT HAS DEMONSTRATED SUFFICIENT GROUNDS TO WARRANT THE SETTING-ASIDE OF THE CONSENT JUDGEMENT RECORDED ON THE 23.06.2025?
15. The first issue for determination is whether or not the Applicant has demonstrated sufficient grounds upon which this Court can be persuaded to set-aside the Consent Judgement recorded in Court on the 23.06.2025 by the 1st and 2nd Plaintiffs with the Defendant.
16. In drawing the present Application, the Applicant herein did create the impression that it was the Court which had delivered a Judgement on the 23.06.2025 on the merits of the issues contained therein.
17. However, the Defendant and the 1st and 2nd Plaintiff did make it clear that the Court herein did only record the Consent Judgement which had been arrived at by the parties on their own volution.
18. The main ground upon which the Applicant is seeking to set-aside the Consent Judgement recorded on the 23.06.2025 is on the basis that he was not a party to the suit and that the terms of the Consent Judgement did negate his ownership of the property known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/3.
19. To resolve this issue, the it is important to identify and understand the issues that had been raised in the pleadings raised by the 1st and 2nd Plaintiff as well as the Defendant which were for determination.
20. The first issue raised by the 1st and 2nd Plaintiffs in their pleadings before the Court was the unlawful occupation by the Defendant of a portion of the original property known as LR.NO.8405/1 which had subsequently been sub-divided into the properties known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, 2, 3, 4 and 5 and registered in the names of the 1st Plaintiff and his four sons who included the 2nd Plaintiff as well as the Applicant herein.
21. The Defendant on the other hand was of the view in his pleadings that the 1st Plaintiff, even before the sub-division of the property known as LR.NO.8405/1, had unlawfully removed his name as a co-owner and thereafter sub-divided and created the properties known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, 2, 3, 4 and 5 in his name and those of his sons who include the 2nd Plaintiff and the Applicant to defeat any claim against him at the execution stage.
22. The issue therefore for determination was whether the actions by the 1st Plaintiff to delete and/or remove the name of the Defendant on the property known as LR.NO.8405/1 and the subsequent sub-division and transfer of those sib-divisions to his sons who include the 2nd Plaintiff and the Applicant was lawful or not.
23. In other words, the substantive issue for determination before the Court was not the legality of the registration of the resultant sub-divisions emanating from LR.NO.8405/1 which are the properties known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, 2, 3, 4 and 5 in the names of the 2nd Plaintiff and the Applicant herein but the process which in fact did create them in the first instance.
24. The dispute as regards the manner in which the name of the Defendant was removed by the 1st Plaintiff from the records of the property known as LR.NO.8405/1 and the procedure which was applied in the creation of the sub-divisions known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/,1, 2, 3, 4 and 5 was squarely between the 1st Plaintiff and the Defendant herein both having been co-owners of the original property known as LR.NO.8405/1.
25. The Consent Judgement recorded on behalf of the 1st and 2nd Plaintiffs and the Defendant on the 23.06.2025 did rectify any omissions and/or commissions that had been undertaken by the 1st Plaintiff in the process of removing the Defendant’s name as a co-owner of the property known as LR.NO.8405/1 and the subsequent creation of the properties known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5.
26. One of the fundamental terms of the Consent Judgement recorded on the 23.06.2026 was that the sub-divisions known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, 2, 3, 4 and 5 were to be cancelled and the original property known as LR.NO.8405/1 be reinstated and/or reconstructed once again.
27. In other words, the person who had created the sub-divisions known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, 2, 3, 4 and 5 did recall back these sub-divisions and had the original property known as LR.NO.8405/1 reinstated.
28. In essence therefore, if the Applicant is aggrieved by the actions by the 1st Plaintiff who had created the sub-divisions namely LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, 2, 3, 4 and 5 from the original LR.NO.8405/1, then the available recourse is to sue the 1st Plaintiff for whatever recourse the Applicant might be of the considered view would compensate his rights of the portion he actually was registered as the owner.
29. In the case of Board of Trustees National Social Security Fund -vs- Michael Mwalo (2015) eKLR, it was held that: -
“The judgment arose from consent of the parties to the suit. The law pertaining to setting aside of consent judgments or consent orders has been clearly stated. A court of the law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or resciding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud or collusion or by an agreement contrary to the policy of court.”
30. Based on the above authority, it is clear in the mind of this Court that none of the three broad grounds allowed for the setting -aside of a Consent Judgement was pleaded by the Applicant herein.
31. Clearly therefore, the Applicant herein cannot succeed to set-aside the Consent Judgement recorded on the 23.06.2025 as none of the three broad grounds established in law as a basis of setting-aside a consent judgement have been proved in the present Application.
32. The second main issue that the Applicant seeks to rely on in setting-aside the Consent Judgement recorded on the 23.06.2025 is that he was neither a party in the said suit nor did he give any authority to the counsel of record on behalf of the 1st and 2nd Plaintiff to enter into such a consent affecting the property known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/3.
33. While it is true that the Applicant was not a party in this suit property and did not give any instructions to the Counsel representing the 1st and 2nd Plaintiffs to record the consent dated 23.06.2025, it is clear in the mind of this Court that in fact the dispute before the Court was substantively in relation to the 1st Plaintiff and the Defendant in terms of the manner in which the name of the Defendant was removed from the original property known as LR.NO.8405/1 and the subsequent sub-division and/or creation of the properties known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5.
34. This is not a dispute that did involve the Applicant herein for the reason that the sub-divisions known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, 2, 3, 4 and 5 would only survive if the 1st Plaintiff had overcome the legality test of how the same were created.
35. Unfortunately, the Consent Judgement recorded on the 23.06.2025 did reverse the sub-division of the original property known as LR.NO.8405/1 with the consent of the 1st Plaintiff who had undertaken the said exercise, and by extension therefore, the creation of the properties known as LR.NO. LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, 2, 3, 4 and 5 was also nullified with the consent of the 1st Plaintiff who was the original owner before the same were transferred to the 2nd Plaintiff and the Applicant herein.
36. In other words, the 1st Plaintiff did not need the authority and/or consent of the Applicant to reverse the sub-division of the original property known as LR.NO.8405/1 and by extension the resultant sub-divisions namely LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1, 2, 3, 4 and 5 as the Applicant did not have any proprietary rights over the original property known as LR.NO.8405/1.
37. Keeping in mind that the Applicant’s property known as LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/3 was recalled and/or cancelled by the maker who is the 1st Plaintiff, then there was no basis upon which the applicant would have participated in these proceedings and/or the consent recorded on the 23.06.2025.
38. In conclusion, this Court is of the considered view and/or finding that there are no satisfactory grounds presented by the Applicant to warrant the setting aside of the Consent Judgement recorded in Court on the 23.06.2025 as sought.
ISSUE NO. 2 - WHETHER APPLICANT IS A NECESSARY PARTY IN THE PRESENT PROCEEDINGS BEFORE COURT?
39. The second issue is whether or not the Applicant herein is a necessary party in the proceedings before the Court.
40. It is clear before this Court and the parties herein that this matter was determined by way of a Consent Judgement recorded on the 23.06.2025.
41. The Consent Judgement recorded on the 23.06.2025 did resolve all the aspects of the dispute between the parties herein as regards both the legality of the original property known as LR.NO.8405/1 and the subsequent sub-divisions namely LR.NO.KIPLOMBE/KUINET BLOCK 9 (ASMARA)/1,2,3,4 and 5.
42. In other words, this Court did become functus officio from the 23.06.2025 when the Consent Judgement was recorded in Court unless the same is set-aside by this Court or the Appellate Court.
43. As such, this Court does not have the jurisdiction to add and/or remove any party to this suit as sought by the Applicant herein
44. In essence, the Applicant’s prayer for joiner cannot be granted in the existence of the Consent Judgement recorded on the 23.06.2025 unless otherwise set-aside.
ISSUE NO. 3 – WHETHER THE PRESENT APPLICATION IS MERITED OR NOT?
45. Based on the findings on Issue No.1 and 2, this Court is of the considered view and finding that the present Application is not merited and cannot be allowed.
ISSUE NO.4- WHO BEARS THE COSTS OF THE PRESENT APPLICATION?
46. Costs are usually awarded to a winning party and in this instance, the winning party is the Defendant herein.
CONCLUSION
47. In conclusion, this Court hereby makes the following Orders in determination of the present Application; -
A. THE NOTICE OF MOTION DATED 15.01.2026 IS NOT MERITED AND THEREFORE DISMISSED FORTHWITH.
B. THE APPLICANT IS CONDEMNED TO PAY COSTS OF THE APPLICATION TO THE DEFENDANT ONLY.
DATED, SIGNED and DELIVERED at ELDORET this 26TH DAY of MAY, 2026.
IN THE PRESENCE OF:
Court Assistant: Brian
Counsel for the Applicant: Mr. Omwenga
Counsel for the 1st And 2nd Plaintiffs: Mr. Chemoyoi
Counsel for the Defendant: Mr. Sambu
| ELC.385 OF 2012 RULING1 |