[1] What precipitated the instant application is the consent filed on the 25th February,2026 and adopted by the court on even date. It would be expected that the concordance would have put this matter to rest, but that is not the case. The firm of M/s Ochieng’ Gai and Company Advocates, who interestingly were previously on record for the plaintiff, have now filed a notice of motion application dated the 10th June,2026. It is expressed to be brought pursuant to Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 9 Rule 9, Order 22 Rules 22 and 50, Order 45 Rule 1, of the Civil Procedure Rules and Section 13 and 19 of the Environment and Land Court Act,2012 and all enabling provisions of the law. It seeks the following orders viz:
a) That the honourable court be pleased to stay the execution of judgment and decree issued in this matter on the 25th February,2026 pending the hearing and determination of this application,
b) That the honourable court be pleased to grant leave to the firm of M/S Ochieng’ Gai & Company Advocates to come on record in this matter for the Plaintiff in place of M/s GKL Advocates LLP after Judgement and the filed notice of change be deemed properly on record.
c) That the honourable court be pleased to review and set aside the consent order and judgement herein delivered on the 25th February,2026, and order that the matter to proceed to full hearing on merit.
d) That the costs of the application be provided for.
[2] The application is premised on the grounds on the face of the application and the affidavit of RAPHAEL KIPSOI ARAP KORIR sworn on the 10 June,2026. Simultaneously he has filed a replying affidavit dated 17th June,2026. There is also an affidavit sworn by SAMUEL KIMUTAI BIRIR on the 10th June,2026 and a further affidavit sworn by SAMUEL K. BIRIR on the 26th June,2026 fortifying the application. The kernel and quintessence of their averments is that the consent judgment was irregularly and illegally procured. It is asserted that one of the new directors namely Daniel Singoe Kandie unprocedurally and without the knowledge and authority of members and directors proceeded to “fraudulently and secretly collude with the respondent to change advocates on record in the matter to facilitate entrenchment of the collusion through the signing of a consent of advocates.” Raphael Korir adjures that, despite being a director, he had no knowledge of the notice of change of advocates as well as the consent, imputing that it was not sanctioned by the directors. It is also their consternation that the CR 12 adduced purporting to have one RAPHAEL KIPSOI ARAP KORIR replaced with SAMUEK KIPTUEI KIMARU as a director is specious because there has been no annual general meeting where members resolved to have the said director replaced. They iterated that the intended annual general meeting never took place following a court order issued in Nakuru HCC No. E016 of 2026.
[3] The respondents have not filed, conventionally, any response in opposition to the application. However, their advocates attended the hearing and opposed the application. The firm of M/s GKL Advocates have also filed a CR 12 dated 26th May,2026 and minutes of the board of directors for meeting held on the 29th May,2026 appointing the law firm of M/s GKL ADVOCATES LLP to represent the Plaintiff.
[4] The respective counsel also made oral submission to buttress their respective arguments.
[5] Mr. Gai, learned counsel for the plaintiff, challenged the authenticity of the CR 12 dated 26th May 2026, contending that it was unsupported by any documentation evidencing an Annual General Meeting or any valid resolution authorizing the removal of the director in question. Counsel submitted that, under the applicable law, directors do not possess the unilateral power to remove a fellow director without compliance with the prescribed procedural requirements.
[6] Counsel further submitted that the dispute concerning the directorship and management of the plaintiff company is the subject of pending proceedings before the High Court and, as such, remains a live issue awaiting determination. He argued that the impugned consent was procured without due process and was therefore irregular, invalid, and incapable of binding the plaintiff. Consequently, counsel urged the court to decline to enforce the consent and instead direct that the matter proceed to a full hearing on its merits.
[7] On her part Ms Chepkemoi conceded that there is a pending suit before the high court. She argued that the issue is on directorship. She exhorted that the CR 12 dated 26th May,2026 is authentic arguing that the AGM was conducted and new directors took office following their elections on the 15th May,2026. She further submitted that the firm of M/s GKL Advocates were duly instructed as per the board's resolution meeting held on the 29th May,2026.
[8] On the other hand, Mr. Terer for the 1st defendant submitted, in essence, that the principles for setting aside a consent judgement have not been demonstrated. He argued that the firm of GKL Advocates are properly on record after taking over from the previous law firms. He encapsulated that the subject land has been subdivided and sold to several members.
[9] Mr Bosek, learned counsel for the 2nd respondent/defendant reiterated that there was no basis of setting aside the consent judgement.
[10] From the outset, I must observe that where parties voluntarily record a consent judgment, the expectation is that such a settlement brings the litigation to a definitive conclusion, thereby removing the matter from the court system. A consent judgment is intended to finally resolve the dispute between the parties and is ordinarily binding upon them unless sufficient legal grounds are established to warrant its setting aside. See Board of Trustees National Social Security Fund v Micheal Mwalo [2015] KECA 782 (KLR).
[11] In the present case, however, significant issues have emerged that strike at the very foundation of the instant application and the basal consent judgment. Foremost among them is the question of which firm of advocates is properly on record for the plaintiff to prosecute the application and, consequently, whether the advocates who entered into the impugned consent had the requisite authority to bind the plaintiff.
[12] In my view, that issue constitutes the first procedural hurdle that must be determined before the court can embark upon the substantive question of whether the consent judgment ought to be set aside. The reason is self-evident. Unless the question of legal representation and the authority of counsel is first resolved, the court cannot ascertain whether the firm of M/s Ochieng Gai and Company Advocate has the capacity to prosecute the application to determine the validity of the consent or whether it was entered into with the necessary authority. The determination of that preliminary issue is therefore indispensable.
[13] This court has been presented with two antithetical CR 12 forms. One is dated the 26th May,2026 and the other one is dated 12th September,2024. The dissimilitude is on one of the directors namely RAPHAEL KIPSOI ARAP KORIR who now challenges the consent judgment adopted on the 25th February,2026. His unsettling deposition was that there has been wrangles in the plaintiff’s company which culminated to elections of new directors sometime in the year 2024; whereupon one of the directors namely DANIEL SINGOE KANDIE proceeded to discreetly change advocates on record without the consensus of the other directors or members to fraudulently enter a consent. The Applicant retort that DANIEL SINGOE KANDIE had no powers of the other directors and members to act on behalf of that Company to record the impugned consent through the firm of M/s GKL Advovates LLP.
[14] To address the inherent question of representation as set hereinabove, it cannot be gainsaid that there are two law firms that both claim that they have been duly instructed by the Plaintiff.
[15] On the one hand the firm of GKL Advocates LLP has filed Minutes of the Board of directors for a meeting held on 29th May,2026 giving instruction to the firm based on the potency of the CR 12 dated 26th May,2026. The CR 12 has been vivaciously balked as not authentic bearing in mind that the High Court had barred the scheduled AGM in Nakuru HCCC/E016/2026. Ms. Chepkemoi, learned counsel, avowed that the directors were duly elected on the 15th May,2026. I must advert, hastily, that indeed there subsists injunctive orders issued by Justice Nangea predating the 15th May,2026.
[16] Conversely, Mr Gai, learned counsel, polemicized that from the minutes of members meeting held on 4th March,2026 the firm of M/s Ochieng and Gai Advocates were appointed to represent the Plaintiff. He also relied on a resolution and authority to file this suit signed by Raphael Kipsoi as a director and two members.
[17] The law is now axiomatic that a company can only act through its duly authorized organs. It follows that instructions to commence, defend or compromise litigation on behalf of a company must emanate from persons vested with lawful authority. Where the authority of those purporting to act for the company is itself under serious challenge, the court must exercise caution before according validity to any step taken in the company's name. See Fubeco China Fushun v Naiposha Company Limited & 11 others[2014] eKLR and Arthi Highway Developers Ltd v Cooperative Society Ltd (Civil Appeal 246 of 2013) [2015] KECA 816 (KLR) (30 January 2015) (Judgment).
[18] In the present case, the unresolved contest over the plaintiff's directorship renders it impossible for this Court to determine, with the requisite certitude, which faction has the lawful mandate to instruct counsel or otherwise to bind the plaintiff in these proceedings. From a scrutable perusal of the pleadings filed before the High Court, it is evident that the germane issue awaiting determination is the lawful composition of the plaintiff's directorship.
[19] In denouement, I am of the considered view that the prudent course is to await the determination of the pending High Court proceedings, whose outcome has a direct and substantial bearing on the substratum of the Notice of Motion dated 10th June 2026. This matter is thus held in abeyance until further directions of this court.
[20] it is so ordered.
DATED, SIGNED and DELIVERED ON THIS 14TH JULY, 2026
Mr Terer for the 1st Defendant-present.
Mr Gai for the Plaintiff/Applicant-present.
Ms. Chepkemoi for the Plaintiff/Respondent-present.
Ms Jepkorir h/b Mr. Bosek for the 2nd Defendant-present.
C/A: Rashid