'I. Introduction.
1. What is before this Honorable Court for its determination is a Notice of Motion application dated 19th September, 2025 by the Plaintiff/Applicant – Mazera Chigamba.
II. The Plaintiff/Applicant’s case
2. The Plaintiff/Applicant sought for the following orders:-
a) The Honourable Court be pleased to release parcel No. Kwale Chigato 1423, from this case.
b) The cost be provided.
3. The application is premised from the grounds, testimonial facts and the supported by testimonial facts and the averments made out under the 7 – Paragraphed Supporting Affidavit sworn by MR. MAZERA CHIGAMBA and dated 19th September 2025 together with the two (2) annexures marked as “ MСa -1 to 2” annexed thereto. He averred that: -
(a) He was the party who instituted these proceedings and therefore was well acquainted with the facts and circumstances giving rise to the dispute.
(b) The property known as Land Parcel No. Kwale/Chigato/1423 was, in his view, erroneously registered in the name of one Mchanjo Mwageu Geu, and in support thereof. Annexed was a copy of the title deed marked as “MCa–1.”
(c) Upon discovering the said registration, he lodged a formal complaint before this Honourable Court for resolution, and the Court duly admitted the matter for hearing and determination.
(d) Subsequently, in the spirit of good neighbourliness, the parties engaged in amicable mediation with the aim of resolving their differences outside court.
(e) As a result of that mediation process, the dispute between himself and the 1st Respondent was fully and conclusively settled, and that no further contest remained regarding ownership of Land Parcel No. Kwale/Chigato/1423.
(f) He relied on a written settlement agreement dated 25th October 2024, which he produced and marked as “MCa–2.”
(g) He urged this Honourable Court to formally release or discharge the said parcel from these proceedings in recognition of the out-of-court settlement reached between the parties.
(h) Finally, he maintained that the matters deponed to in his affidavit were true to the best of his knowledge, information and belief, and that his application had been made in good faith and in the interest of justice.
III. Submissions
13. On 22nd September 2025, in the presence of all parties, the Honourable Court issued directions granting both the Plaintiff/Applicant and the Defendant/Respondent fourteen (14) days within which to file their respective responses and concise written submissions in respect of the Notice of Motion application dated 19th September 2025.
14. Unfortunately, by the time the Court retired to prepare this ruling, neither party had filed any submissions as directed. Consequently, the Court has proceeded to render its determination on the basis of the pleadings, affidavits, and the applicable law on record.
IV. Analysis and Determination
15. I have carefully read and put into account all the filed pleadings – the Notice of Motion application dated 19th September 2025 and the relevant provisions of the Constitution of Kenya, 2010, the appropriate and enabling laws with regard to the applications filed in this Court.
16. In order to arrive at an informed decision, reasonable, Just and fair decision for its determination, the Honorable Court framed the following three (3) issues. These are: -
a) Whether the Notice of Motion application dated 19th September 2025 by the Plaintiff/Applicant has any merit.
b) Whether the parties are entitled to the relief sought?
c) Who will bear the costs of the application?
ISSUE No. a). Whether the Notice of Motion application dated 19th September 2025 by the Plaintiff/Applicant has any merit.
17. Under this Sub – heading, the Court will be making a determination on the merits of the application. To begin with, it is instructive to note that this is a court of law and justice. In determining the matters before it, it is guided by the Constitution of Kenya, 2010 the provisions of law and equity and the principles of natural justice. Given these legal principles, the Court is enjoined to give effect to the overriding objective both from the provision of Sections 3(1) of the Environment and Land Act, No. 19 of 2011 and 1A (1) of the Civil Procedure Act, that it to say, to facilitate “… the just, expeditious, proportionate and accessible resolution of disputes”. That has to be done without procedural technicalities, as contemplated under the provision of Article 159 (2) (d) of the Constitution of Kenya 2010.
18. The provision of Order 25 of the Civil Procedure Rules, 2010 provides for withdrawal of suits as follows: -
(1) At any time before the setting down of the suit for hearing, the Plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the Defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.
(2) (1) Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn upon the filing of a written consent signed by all the parties.
(2) Where a suit has been set down for hearing, the court may grant the Plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit and otherwise, as are just.”.
19. The right to withdraw a suit under the provision of Order 25 Rules 1 and 2(1) is not fettered by any conditions and a party who intends to withdraw their suit, has an absolute right to do so. However, under Order 25 Rule 2 (2), withdrawal of a suit requires permission of the court and the withdrawal may be subject to terms that the court considers just, including payment of costs or filing of any other suit.
20. In the case of:- “Nicholas Kiptoo Arap Korir Salat – Versus - IEBC & 7 Others, Supreme Court Application No. 16 of 2014”, the Supreme Court stated as follows: -
“a party’s right to withdraw a matter before the court cannot be taken away. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”
21. Additionally, in the case of “Beijing Industrial Designing & Researching Institute (Supra)”, the Court of Appeal stated as follows: -
“As a general proposition, the right of party to discontinue a suit or withdraw his claim cannot be questioned. There are many circumstances when a Plaintiff may legitimately wish to discontinue his suit or withdraw his claim. The Supreme Court of Nigeria in Abayomi Babatunde vs. Pan Atlantic Shipping & Transport Agencies Limited & Others SC 154/2002 identified those circumstances to include where;
(i) A Plaintiff realizes the weakness of his claim in the light of the defence put up by the Defendant.
(ii) A Plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date,
(iii) Where by abandoning the prosecution of the case, the Plaintiff could substantially reduce the high costs that would have otherwise followed after a full-scale but unsuccessful litigation, or
(iv) A Plaintiff may possibly retain the right to relitigate the claim at a more auspicious time if necessary.
22. As acknowledged by the above cited decisions, the right provided under Order 25 Rules 1 & 2 (1) is not fettered by any conditions; it is an absolute right which a Plaintiff can exercise at his sweet will at any time before the Judgment was delivered. In the case of “Allah Baksh – Versus - Niamat Ali 1892 All WN 53 (1)”. the court described the right as “absolute” and capable of being exercised “without any permission from the court”. However, under the third category, withdrawal requires permission of the court but the plaintiff does not need consent of the defendant.
23. In the Court of Appeal in the case of: “Brooke Bond Liebig Limited – Versus - Mallya [1975] EA 266 at 269 Law Ag P said:-
“A court cannot interfere with a Consent Judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.”
24. In the case of: “Kenya Commercial Bank Ltd – Versus - Specialised Engineering Co. Limited [1982] KLR 485”, Harris J correctly held “inter alia’, that: –
1. “A consent order entered into by Counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.
2. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.
25. Additionally, in the case of: “Hirani – Versus - Kassam [1952] 19 EACA 131 the Court of Appeal held:-
“It is now well settled law that a Consent Judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out: see the decision of this court in J. M. Mwakio – Versus - Kenya Commercial Bank Limited Civ Apps 28 of 1982 and 69 of 1983. In Purcell – Versus - F.C. Trigell Ltd [1970] 3 All ER 671, Winn LJ said at 676:-
“It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with the knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.”
26. To wrap up in the Case of:- “Flora N. Wasike -Versus – Destimo Wamboko (1982 – 1988) 1 KAR 625 Hancox JA held:-
“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 on 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 the Consent was given without sufficient material facts or in general for a reason which would enable the Court to set aside an agreement”
ISSUE No. b). Whether the parties are entitled to the reliefs sought.
27. Under this Sub – title its is to examine the reliefs sought by the parties. The Plaintiff/Applicant seeks that this Honourable Court releases Parcel No. Kwale/Chigato/1423 from these proceedings on the basis that the dispute between himself and the Defendant/Respondent has been fully and amicably settled through an out-of-court agreement dated 25th October 2024. Annexed as “MCa–2”).
28. The Court has critically perused the terms and conditions stipulated in the said settlement agreement. It is noted that both parties acknowledged having reached a mutual understanding and signed the same voluntarily. Indeed, based on the provision of Article 159(2)(c) of the Constitution of Kenya, 2010 which expressly encourages alternative dispute resolution mechanisms, including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms. This legal principles is also enshrined under the provision of Section 20 ( 1 ) & ( 2 ) of the Environment & Land Act, No. 19 of 2011. These provisions empower courts to promote and give effect to settlements arrived at by the parties, provided such settlements are not contrary to the law or public policy.
29. In the case of:- “Flora N. Wasike (Supra) the Court of Appeal held that:
“It is now settled law that a Consent Judgment or order has a contractual effect and can only be set aside on grounds which would justify the setting aside of a contract, for example fraud, mistake or misrepresentation.”
30. In the present case, the Applicant has produced a duly executed settlement agreement, MCa–2, and averred that the dispute regarding Parcel No. Kwale/Chigato/1423 has been completely resolved. On the contrary, the Respondent has not tendered evidence to contradict or challenge the authenticity or validity of that agreement. It is therefore apparent that no live dispute remains between the Applicant and Respondent over that parcel.
31. Further, the Applicant has demonstrated that the suit property is now registered in the name of a third party, one Mchanjo Mwageu Geu, who is not directly involved in the present application. The Court must therefore determine whether it can lawfully “release” the property from this case without offending “the doctrine of lis pendens” or prejudicing the rights of a third party.
32. The doctrine of lis pendens is a common law principle which was incorporated under Section 52 of the Indian Transfer of Property Act, 1882 (now repealed) which was applicable to Kenya. This Section provided as follows:-
“During the active prosecution in any Court having authority in British India by the Governor General in Council, of a contentious suit or proceeding in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.”
33. The intent of Section 52 of the ITPA 1882 (now repealed) was to prohibit the transfer of a property the subject of Court proceedings to a third party during the pendency of a suit. The Court in the Case of Carol Silcock – Versus - Kassim Sharrif Mohamed [2013] eKLR, cited the Case of Abdalla Omar Nabhan – Versus - The Executor of the Estate of Saad Bin Abdalla Bin Abuod & Another, (2013) eKLR” where it was held that:-
“………the purposes of the principle of lis pendens is to preserve the suit property until the suit is finally determined or until the court issues orders and gives terms on how the suit property should be dealt with. The doctrine of lis pendens is founded on public policy and equity.”
34. Further to this, in the case of:- “Mawji – Versus - U.S. International University and Another (1976 - 80) KLR 229” Justice Madan, while addressing the purpose of the principle of lis pendens adopted the holding in “Bellamy – Versus - Sabine (1857) 1 De J 566, 584” where Turner L J held as follows:-
“It is a doctrine common to the courts both of law and equity, and rests, as I apprehend, upon this jurisdiction, that it would plainly be impossible that any action or suit could be brought to a successful determination, if alienation pendente lite were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceedings.”
35. In this case, it is not clear from the record whether the registration of the parcel in the name of Mchanjo Mwageu Geu occurred before or after the filing of the suit. If the registration occurred pendente lite, the Court would be entitled to treat such registration as subject to the outcome of the case. However, where a third party’s registration predates the litigation and there is no evidence of fraud, the Court cannot vary the title without giving that party an opportunity to be heard—see “Mwamule Company Limited – Versus - Chief Land Registrar & 2 Others (ELC, 2025)”, which emphasized that rectification under Section 80 of the Land Registration Act can only issue where the registered proprietor participated in or had knowledge of the fraud or mistake leading to registration.
36. In the present matter, no evidence of fraud or collusion has been presented, and the Applicant does not seek rectification or cancellation of the register. Rather, it is quite simple & straightforward - he only asks that the Court acknowledges the settlement and releases the parcel from the case. In the Court’s view, granting such an order does not prejudice any third party and indeed promotes the constitutional value of reconciliation and finality in litigation.
37. Accordingly, the Court finds that the Applicant has sufficiently demonstrated that the dispute in respect of Parcel No. Kwale/Chigato/1423 has been settled between the parties, and it is just and equitable to allow the request to release the said parcel from these proceedings, subject to the Court’s supervisory discretion.
ISSUE No. (c) - Who should bear the Costs of the application
38. It is now well established that the issue of costs is at the Courts discretion. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The Black Law Dictionary defines cost to means:-
“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”
39. The proviso of Section 27 of the Civil Procedure Act, Cap. 21 grants the High Court discretionary power in the award of costs which ordinarily follow the event unless the Court for good reasons orders otherwise. Section 27 (1) provides as follows;-
“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”
40. A careful reading of Section 27 indicates that it is considered trite law that costs follow the cause/event unless the court, for some good reasons, orders otherwise.
41. In the instant case, although the Applicant’s motion has succeeded in substance, though partially, there has been no demonstration of bad faith or abuse of process on his part. In the circumstances, the Court finds it fair and just that each party bears its own costs, especially considering that the application arises from an amicable settlement between the parties.
V. Conclusion & Disposition
42. Having carefully considered the Notice of Motion application dated 19th September 2025, the affidavit evidence, and the applicable law, the Court reaches the following conclusion and issues the following orders:
a) THAT the Notice of Motion application dated 19th September 2025 be and is hereby allowed to the extent that Parcel No. Kwale/Chigato/1423 is hereby released and marked as settled in accordance with the parties’ out-of-court agreement dated 25th October 2024.
b) THAT the out-of-court settlement dated 25th October 2024 be and is hereby adopted as an order of this Court pursuant to Article 159 (2) (c) of the Constitution and Section 20 of the Environment and Land Court Act.
c) THAT the order to release the said parcel shall not prejudice any rights, claims, or interests of third parties not party to this suit, and nothing in this order shall be construed as cancelling, rectifying, or otherwise interfering with the current registration of title in the name of Mchanjo Mwageu Geu, unless lawfully determined through a separate process.
d) THAT each party shall bear its own costs.
IT IS SO ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAMS VIRTUALLY, SIGNED AND DATED AT KWALE THIS … 10TH …. DAY OF …… NOVEMBER ……. 2025.
Ruling delivered in the presence of:-
a) Mr. Daniel Disii – the Court Assistant
b) Mr. Mkan Advocate for the Plaintiff/Applicant.
c) No appearance for the Defendant/Respondent. '
1. What is before this Honorable Court for its determination is a Notice of Motion application dated 19th September, 2025 by the Plaintiff/Applicant – Mazera Chigamba.
II. The Plaintiff/Applicant’s case
2. The Plaintiff/Applicant sought for the following orders:-
a) The Honourable Court be pleased to release parcel No. Kwale Chigato 1423, from this case.
b) The cost be provided.
3. The application is premised from the grounds, testimonial facts and the supported by testimonial facts and the averments made out under the 7 – Paragraphed Supporting Affidavit sworn by MR. MAZERA CHIGAMBA and dated 19th September 2025 together with the two (2) annexures marked as “ MСa -1 to 2” annexed thereto. He averred that: -
(a) He was the party who instituted these proceedings and therefore was well acquainted with the facts and circumstances giving rise to the dispute.
(b) The property known as Land Parcel No. Kwale/Chigato/1423 was, in his view, erroneously registered in the name of one Mchanjo Mwageu Geu, and in support thereof. Annexed was a copy of the title deed marked as “MCa–1.”
(c) Upon discovering the said registration, he lodged a formal complaint before this Honourable Court for resolution, and the Court duly admitted the matter for hearing and determination.
(d) Subsequently, in the spirit of good neighbourliness, the parties engaged in amicable mediation with the aim of resolving their differences outside court.
(e) As a result of that mediation process, the dispute between himself and the 1st Respondent was fully and conclusively settled, and that no further contest remained regarding ownership of Land Parcel No. Kwale/Chigato/1423.
(f) He relied on a written settlement agreement dated 25th October 2024, which he produced and marked as “MCa–2.”
(g) He urged this Honourable Court to formally release or discharge the said parcel from these proceedings in recognition of the out-of-court settlement reached between the parties.
(h) Finally, he maintained that the matters deponed to in his affidavit were true to the best of his knowledge, information and belief, and that his application had been made in good faith and in the interest of justice.
III. Submissions
13. On 22nd September 2025, in the presence of all parties, the Honourable Court issued directions granting both the Plaintiff/Applicant and the Defendant/Respondent fourteen (14) days within which to file their respective responses and concise written submissions in respect of the Notice of Motion application dated 19th September 2025.
14. Unfortunately, by the time the Court retired to prepare this ruling, neither party had filed any submissions as directed. Consequently, the Court has proceeded to render its determination on the basis of the pleadings, affidavits, and the applicable law on record.
IV. Analysis and Determination
15. I have carefully read and put into account all the filed pleadings – the Notice of Motion application dated 19th September 2025 and the relevant provisions of the Constitution of Kenya, 2010, the appropriate and enabling laws with regard to the applications filed in this Court.
16. In order to arrive at an informed decision, reasonable, Just and fair decision for its determination, the Honorable Court framed the following three (3) issues. These are: -
a) Whether the Notice of Motion application dated 19th September 2025 by the Plaintiff/Applicant has any merit.
b) Whether the parties are entitled to the relief sought?
c) Who will bear the costs of the application?
ISSUE No. a). Whether the Notice of Motion application dated 19th September 2025 by the Plaintiff/Applicant has any merit.
17. Under this Sub – heading, the Court will be making a determination on the merits of the application. To begin with, it is instructive to note that this is a court of law and justice. In determining the matters before it, it is guided by the Constitution of Kenya, 2010 the provisions of law and equity and the principles of natural justice. Given these legal principles, the Court is enjoined to give effect to the overriding objective both from the provision of Sections 3(1) of the Environment and Land Act, No. 19 of 2011 and 1A (1) of the Civil Procedure Act, that it to say, to facilitate “… the just, expeditious, proportionate and accessible resolution of disputes”. That has to be done without procedural technicalities, as contemplated under the provision of Article 159 (2) (d) of the Constitution of Kenya 2010.
18. The provision of Order 25 of the Civil Procedure Rules, 2010 provides for withdrawal of suits as follows: -
(1) At any time before the setting down of the suit for hearing, the Plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the Defendants or may withdraw any part of his claim, and such discontinuance or withdrawal shall not be a defence to any subsequent action.
(2) (1) Where a suit has been set down for hearing it may be discontinued, or any part of the claim withdrawn upon the filing of a written consent signed by all the parties.
(2) Where a suit has been set down for hearing, the court may grant the Plaintiff leave to discontinue his suit or to withdraw any part of his claim upon such terms as to costs, the filing of any other suit and otherwise, as are just.”.
19. The right to withdraw a suit under the provision of Order 25 Rules 1 and 2(1) is not fettered by any conditions and a party who intends to withdraw their suit, has an absolute right to do so. However, under Order 25 Rule 2 (2), withdrawal of a suit requires permission of the court and the withdrawal may be subject to terms that the court considers just, including payment of costs or filing of any other suit.
20. In the case of:- “Nicholas Kiptoo Arap Korir Salat – Versus - IEBC & 7 Others, Supreme Court Application No. 16 of 2014”, the Supreme Court stated as follows: -
“a party’s right to withdraw a matter before the court cannot be taken away. A court cannot bar a party from withdrawing his matter. All that the court can do is to make an order as to costs where it is deemed appropriate.”
21. Additionally, in the case of “Beijing Industrial Designing & Researching Institute (Supra)”, the Court of Appeal stated as follows: -
“As a general proposition, the right of party to discontinue a suit or withdraw his claim cannot be questioned. There are many circumstances when a Plaintiff may legitimately wish to discontinue his suit or withdraw his claim. The Supreme Court of Nigeria in Abayomi Babatunde vs. Pan Atlantic Shipping & Transport Agencies Limited & Others SC 154/2002 identified those circumstances to include where;
(i) A Plaintiff realizes the weakness of his claim in the light of the defence put up by the Defendant.
(ii) A Plaintiff’s vital witnesses are not available at the material time and will not be so at any certain future date,
(iii) Where by abandoning the prosecution of the case, the Plaintiff could substantially reduce the high costs that would have otherwise followed after a full-scale but unsuccessful litigation, or
(iv) A Plaintiff may possibly retain the right to relitigate the claim at a more auspicious time if necessary.
22. As acknowledged by the above cited decisions, the right provided under Order 25 Rules 1 & 2 (1) is not fettered by any conditions; it is an absolute right which a Plaintiff can exercise at his sweet will at any time before the Judgment was delivered. In the case of “Allah Baksh – Versus - Niamat Ali 1892 All WN 53 (1)”. the court described the right as “absolute” and capable of being exercised “without any permission from the court”. However, under the third category, withdrawal requires permission of the court but the plaintiff does not need consent of the defendant.
23. In the Court of Appeal in the case of: “Brooke Bond Liebig Limited – Versus - Mallya [1975] EA 266 at 269 Law Ag P said:-
“A court cannot interfere with a Consent Judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.”
24. In the case of: “Kenya Commercial Bank Ltd – Versus - Specialised Engineering Co. Limited [1982] KLR 485”, Harris J correctly held “inter alia’, that: –
1. “A consent order entered into by Counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.
2. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.
25. Additionally, in the case of: “Hirani – Versus - Kassam [1952] 19 EACA 131 the Court of Appeal held:-
“It is now well settled law that a Consent Judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out: see the decision of this court in J. M. Mwakio – Versus - Kenya Commercial Bank Limited Civ Apps 28 of 1982 and 69 of 1983. In Purcell – Versus - F.C. Trigell Ltd [1970] 3 All ER 671, Winn LJ said at 676:-
“It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with the knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.”
26. To wrap up in the Case of:- “Flora N. Wasike -Versus – Destimo Wamboko (1982 – 1988) 1 KAR 625 Hancox JA held:-
“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 on 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 the Consent was given without sufficient material facts or in general for a reason which would enable the Court to set aside an agreement”
ISSUE No. b). Whether the parties are entitled to the reliefs sought.
27. Under this Sub – title its is to examine the reliefs sought by the parties. The Plaintiff/Applicant seeks that this Honourable Court releases Parcel No. Kwale/Chigato/1423 from these proceedings on the basis that the dispute between himself and the Defendant/Respondent has been fully and amicably settled through an out-of-court agreement dated 25th October 2024. Annexed as “MCa–2”).
28. The Court has critically perused the terms and conditions stipulated in the said settlement agreement. It is noted that both parties acknowledged having reached a mutual understanding and signed the same voluntarily. Indeed, based on the provision of Article 159(2)(c) of the Constitution of Kenya, 2010 which expressly encourages alternative dispute resolution mechanisms, including reconciliation, mediation, arbitration, and traditional dispute resolution mechanisms. This legal principles is also enshrined under the provision of Section 20 ( 1 ) & ( 2 ) of the Environment & Land Act, No. 19 of 2011. These provisions empower courts to promote and give effect to settlements arrived at by the parties, provided such settlements are not contrary to the law or public policy.
29. In the case of:- “Flora N. Wasike (Supra) the Court of Appeal held that:
“It is now settled law that a Consent Judgment or order has a contractual effect and can only be set aside on grounds which would justify the setting aside of a contract, for example fraud, mistake or misrepresentation.”
30. In the present case, the Applicant has produced a duly executed settlement agreement, MCa–2, and averred that the dispute regarding Parcel No. Kwale/Chigato/1423 has been completely resolved. On the contrary, the Respondent has not tendered evidence to contradict or challenge the authenticity or validity of that agreement. It is therefore apparent that no live dispute remains between the Applicant and Respondent over that parcel.
31. Further, the Applicant has demonstrated that the suit property is now registered in the name of a third party, one Mchanjo Mwageu Geu, who is not directly involved in the present application. The Court must therefore determine whether it can lawfully “release” the property from this case without offending “the doctrine of lis pendens” or prejudicing the rights of a third party.
32. The doctrine of lis pendens is a common law principle which was incorporated under Section 52 of the Indian Transfer of Property Act, 1882 (now repealed) which was applicable to Kenya. This Section provided as follows:-
“During the active prosecution in any Court having authority in British India by the Governor General in Council, of a contentious suit or proceeding in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.”
33. The intent of Section 52 of the ITPA 1882 (now repealed) was to prohibit the transfer of a property the subject of Court proceedings to a third party during the pendency of a suit. The Court in the Case of Carol Silcock – Versus - Kassim Sharrif Mohamed [2013] eKLR, cited the Case of Abdalla Omar Nabhan – Versus - The Executor of the Estate of Saad Bin Abdalla Bin Abuod & Another, (2013) eKLR” where it was held that:-
“………the purposes of the principle of lis pendens is to preserve the suit property until the suit is finally determined or until the court issues orders and gives terms on how the suit property should be dealt with. The doctrine of lis pendens is founded on public policy and equity.”
34. Further to this, in the case of:- “Mawji – Versus - U.S. International University and Another (1976 - 80) KLR 229” Justice Madan, while addressing the purpose of the principle of lis pendens adopted the holding in “Bellamy – Versus - Sabine (1857) 1 De J 566, 584” where Turner L J held as follows:-
“It is a doctrine common to the courts both of law and equity, and rests, as I apprehend, upon this jurisdiction, that it would plainly be impossible that any action or suit could be brought to a successful determination, if alienation pendente lite were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendant’s alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceedings.”
35. In this case, it is not clear from the record whether the registration of the parcel in the name of Mchanjo Mwageu Geu occurred before or after the filing of the suit. If the registration occurred pendente lite, the Court would be entitled to treat such registration as subject to the outcome of the case. However, where a third party’s registration predates the litigation and there is no evidence of fraud, the Court cannot vary the title without giving that party an opportunity to be heard—see “Mwamule Company Limited – Versus - Chief Land Registrar & 2 Others (ELC, 2025)”, which emphasized that rectification under Section 80 of the Land Registration Act can only issue where the registered proprietor participated in or had knowledge of the fraud or mistake leading to registration.
36. In the present matter, no evidence of fraud or collusion has been presented, and the Applicant does not seek rectification or cancellation of the register. Rather, it is quite simple & straightforward - he only asks that the Court acknowledges the settlement and releases the parcel from the case. In the Court’s view, granting such an order does not prejudice any third party and indeed promotes the constitutional value of reconciliation and finality in litigation.
37. Accordingly, the Court finds that the Applicant has sufficiently demonstrated that the dispute in respect of Parcel No. Kwale/Chigato/1423 has been settled between the parties, and it is just and equitable to allow the request to release the said parcel from these proceedings, subject to the Court’s supervisory discretion.
ISSUE No. (c) - Who should bear the Costs of the application
38. It is now well established that the issue of costs is at the Courts discretion. Costs mean the award a party is awarded at the conclusion of a legal action or proceedings in any litigation. The Black Law Dictionary defines cost to means:-
“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”
39. The proviso of Section 27 of the Civil Procedure Act, Cap. 21 grants the High Court discretionary power in the award of costs which ordinarily follow the event unless the Court for good reasons orders otherwise. Section 27 (1) provides as follows;-
“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”
40. A careful reading of Section 27 indicates that it is considered trite law that costs follow the cause/event unless the court, for some good reasons, orders otherwise.
41. In the instant case, although the Applicant’s motion has succeeded in substance, though partially, there has been no demonstration of bad faith or abuse of process on his part. In the circumstances, the Court finds it fair and just that each party bears its own costs, especially considering that the application arises from an amicable settlement between the parties.
V. Conclusion & Disposition
42. Having carefully considered the Notice of Motion application dated 19th September 2025, the affidavit evidence, and the applicable law, the Court reaches the following conclusion and issues the following orders:
a) THAT the Notice of Motion application dated 19th September 2025 be and is hereby allowed to the extent that Parcel No. Kwale/Chigato/1423 is hereby released and marked as settled in accordance with the parties’ out-of-court agreement dated 25th October 2024.
b) THAT the out-of-court settlement dated 25th October 2024 be and is hereby adopted as an order of this Court pursuant to Article 159 (2) (c) of the Constitution and Section 20 of the Environment and Land Court Act.
c) THAT the order to release the said parcel shall not prejudice any rights, claims, or interests of third parties not party to this suit, and nothing in this order shall be construed as cancelling, rectifying, or otherwise interfering with the current registration of title in the name of Mchanjo Mwageu Geu, unless lawfully determined through a separate process.
d) THAT each party shall bear its own costs.
IT IS SO ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH MICROSOFT TEAMS VIRTUALLY, SIGNED AND DATED AT KWALE THIS … 10TH …. DAY OF …… NOVEMBER ……. 2025.
Ruling delivered in the presence of:-
a) Mr. Daniel Disii – the Court Assistant
b) Mr. Mkan Advocate for the Plaintiff/Applicant.
c) No appearance for the Defendant/Respondent. '