Mzee Amri Habib (hereinafter referred to as the applicant) filed an Application under a Certificate of Urgency vide a Notice of Motion dated 24th October, 2025 seeking the following prayers; -
a) This Application be certified as urgent and service be dispensed with in the first instance.
b) The Honourable Court be pleased to enjoin the Applicant/Intended interested party to these proceedings for purposes of protecting his proprietary interest in Plot No.3448/IIIMN Mombasa.
c) Pending the hearing and determination of this Application interpartes, the Honourable Court be pleased to grant a temporary injunction restraining the Plaintiff and the 1st Defendant, their servants, agents. or assigns from selling. transferring, alienating, charging or entering upon, or in any way interfering with the suit property.
d) There be a stay of execution and enforcement of the Consent Judgment and all consequential Orders entered on 19th March, 2025 pending hearing and determination of this Application and Suit.
e) The Consent judgment dated 19th March, 2025 be set aside and/or vacated.
f) Upon setting aside, the Suit be reopened for hearing on its merits with the Applicant duly enjoined as a party.
g) Upon reopening the Suit herein, and the Applicant being enjoined as a party. be granted leave to put in his documents out of time.
h) Costs of the Application be in the cause.
The applicant states that he had been at all material times between December, 2021 to March, 2025 in occupation of the property known as Plot No. 3448/III/MN, situate at Mtwapa Area, having purchased the same from the Plaintiff herein, who at all times confirmed and upheld such sale of the subject property to the Applicant herein.
In a shocking turn of events, the Plaintiff who filed the Suit herein against the 1st Defendant on allegations of fraudulently trying to invade the Suit property colluded with the defendant to enter into a Consent which was used to oust the Applicant herein from the Suit Property with the help of Police Officers from Mtwapa Police Station. Aggrieved, the Applicant filed an Application which was withdrawn and in pursuit of his proprietary rights filed a Land Suit ELCLC NO. E045 OF 2025 before the Mombasa Environment and Land Court where he sued the Respondents herein.
However, on the 15th October, 2025, the Honourable Court delivered a Ruling stating that the aforesaid Suit ELCLC NO. E045 OF 2025 was not res judicata, and that the Applicant herein had locus standi to pursue his rights redirecting him to file the instant Application.
The Plaintiff/Respondent in response filed a Notice of Preliminary Objection dated the 15th December, 2025 on the following grounds; -
a) THAT the Applicant cannot possibly seek to be enjoined in a Suit that has been heard, determined and settled and file closed.
b) THAT the Suit is as dead as a dodo and the Applicant's Application is incapable of breathing new life and or resurrecting the Suit.
c) THAT since the Applicant was never a party at the time the Suit was compromised and settled, his recourse, if any against the parties herein, lies elsewhere.
The 1st Defendant/Respondent equally filed a Replying Affidavit sworn on the 15th December, 2025 in response to the Applicant's Application of 24th October, 2025 stating that the Applicant had been duly served and represented by Counsel Messrs Mwakireti and Company Advocates, a fact which remains unproven before the Court and the records. Further, the 1st Defendant alleges indolence of the Applicant in pursuing his interests in the Suit.
THE APPLICANT CASE
The applicant argues that the Preliminary Objection dated 15th December, 2025 by the Plaintiff does not meet the threshold of an Objection by the Law and Precedents and the same should not be sustained and that the Applicant has met the threshold for joinder and for setting aside the Consent Judgment of 19th March, 2025. The applicant argues that he has also met the threshold for grant of review Orders.
The applicant refers to the Black Law Dictionary that defines a preliminary Objection as being:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
The applicant submits that in the matter of Mukisa Biscuits Manufacturing Co. Ltd (supra) where Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure points of law. The Learned Judge then held that: -
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurrer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”.
The applicant further relies on the decision of Attorney General & another v Andrew Mwaura Githinji & another [2016] eKLR”: - as it explicitly extrapolates in a more concise and surgical precision what is tantamount to the scope, nature and meaning of a Preliminary Objection inter alia: -
i. A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
ii. A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
iii. The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
Further the applicant cites the case of: - Oraro v Mbaja [2005] eKLR 141, on the nature of Preliminary Objections observed that:
“A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary objection anything that purports to be a preliminary objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”
The applicant cites the case of -United Insurance Company Limited v Scholastica A - Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”, the Court held that; “A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed”
The applicant submits that from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that: -“A Preliminary Objection cannot be raised if any facts have to be ascertained.”
The Plaintiff's allegations that this matter was heard, determined and settled need the Court to peruse through the Proceedings which contrary to what has been submitted that the Applicant herein was served with documents but failed to seek leave to be enjoined remain unproven and scrutiny must be done to ascertain such facts. The Plaintiff has never filed an Affidavit of Service demonstrating service of summons upon the Applicant. Subsequently, no proof has been tendered that the Applicant was ever heard and the matter determined on merit basis. If anything, from the look of the typed Proceedings, the Plaintiff is the only party who had given sworn testimony at a hearing before the Honourable Justice Kibunja, and even so, he confirmed under Oath that the Plaintiff had duly sold the Suit Property to the Applicant. This is further affirmed in the Ruling of Honourable Justice Munyao Sila delivered on the 28th September, 2022. In a nutshell, the applicant submits that the objection raised herein cannot be sustained for reasons that the Court shall need proof that indeed the Suit was heard and determined.
The applicant further submits that he has met the threshold for joinder. Order 1 Rule 10 (2) of the Civil Procedure Rules grants provides; -
“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”
The Court may at any stage of the proceedings either on application by a party or on its own motion add a party to the Suit if such party is necessary for the determination of the issues in dispute or whose presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. Therefore, the issue of joinder of parties is allowed in law and can be done at any state of the proceedings. The Honourable Justice Kibunja in his Ruling of 15th October, 2025 noted that the Applicant had locus standi in this Suit and recommended that he pursues his proprietary interests in this matter.
In the case of “Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR”, Nambuye, J (as she then was) set out the guiding principles applications seeking for joinder of parties as follows:-
“…parties cannot be added so as to introduce quite a new cause of action or to alter the nature of the suit. Necessary parties who ought to have been joined are parties who are necessary to the Constitution of the suit without whom no decree at all can be passed. Therefore, in case of a Defendant two conditions must be met:
1) There must be a right to some relief against him in respect of the matter involved in the suit.
2) His presence should be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit being one without whom no decree can be made effectively and one whose presence is necessary for complete and final decision on the questions involved in the proceedings.
The applicant has demonstrated that he had taken ownership of the Suit Property by virtue of purchasing the same from the Plaintiff, a fact that is glaring from the record by virtue of the Affidavits and Sworn Testimony of the Plaintiff's Director before a Court of Law. The Applicant has further annexed evidence of constructing a permanent house in the Suit property which he had been in possession prior to the Consent Judgment that saw him being evicted unheard and in contravention of his rights under Article 40 of the Constitution of Kenya. Any decision that ought to be made in Court regarding the Suit Property directly affects the Applicant.
The applicant cites the case of Francis Karioki Muruatetu & Another v Republic & 5 Others Petition No. 15 as consolidated with No. 16 of 2013 [2016] e KLR, the Supreme Court of Kenya set out the following principles for joinder;
a) The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
b) The prejudice to be suffered by the Intended Interested Party in case of non-joinder, must also be demonstrated to the satisfaction of the court. It must also be clearly outlined and not something remote.
c) Lastly, a party must, in its application, set out the case and or submissions it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.
It is therefore the applicant’s submissions that the Plaintiff and the 1st and 2nd Defendants knowingly colluded to enter into Two (2) Consents without the knowledge and involvement of the Applicant herein which Consents were adopted as Judgment by the Court unaware of the misrepresentation. The impact of the aforesaid consents is that the Applicant was forcefully evicted from his property in contravention of Article 40 which vests proprietary rights upon him, which rights cannot be taken away without due process. It is therefore the applicant’s prayer that he be enjoined as a party to enable him pursue his rights and in conformation of the directions issued on 15th October, 2025.
The applicant further submits that he has met the threshold for setting aside the Consent Judgment of 19th March, 2025. The principles for setting aside a consent are well settled. There must be a demonstration of fraud or collusion or misrepresentation or mistake or that the consent is contrary to the policy of the court or for any sufficient cause. In the case of -Flora Wasike v Destimore Wamboko- [1988] e KLR, it was held as follows;
“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 setting a contract aside or if certain conditions remain to be fulfilled, which are not carried out.”
Similarly, in S.M. N. V Z. M. S & 3 Others [2017] e KLR, the court held that to set aside a consent, any one of the following circumstances must be shown; -
i. Where the consent was obtained fraudulently,
ii. In collusion between affected parties
iii. Where the agreement is contrary to the policy of the court;
iv. Where the consent is based on insufficient material facts;
v. Where the consent is based on misapprehension or ignorance of material facts;
vi. Any other sufficient reason.
In the instant case, the Plaintiff and the Defendants agreed to exclude the Applicant from the contents of the Consent despite the testimony of the Plaintiff confirming that they had indeed sold the subject Suit Property to the Applicant who had enjoyed peaceful occupation and even developed a permanent house on the property which facts were within the knowledge of the Plaintiff and the 1st Defendant. They unilaterally, colluded to enter into a fraudulent consent and through material non-disclosure caused the Court to adopt their illegal Consents which they further used the Police Officers based at Mtwapa to evict the Applicant who had no other recourse but to obtain Interim Orders in ELCLC E045 OF 2025.
The applicant submits that since the unlawful eviction of the Applicant from the Suit Property in March, 2025, the 1st Defendant with the help of the Plaintiff have made several attempts at selling off the Suit property to unsuspecting third parties, which actions further show their intent into colluding to enter the fraudulent consent.
It is to be noted that the Plaintiff had filed criminal complaints against the 1st Defendant for fraudulent transfer of the Suit property. The Ruling of 28th September, 2022 and the records before the Honourable Court shed the clarity surrounding the ownership of the Suit Property and the lack of clear circumstances on how the 1st Defendant acquired the property. Yet in a turn of events, the Plaintiff who sued the 1st Defendant for fraud was now entering into consents that deprived the Applicant of his rightful property. It is on the basis of fraud, collusion and material non- disclosure of facts that the Consent Judgment of 19th March, 2025 ought to be set aside.
The applicant argues that he has met the threshold for grant of review Orders.
Section 80 of the Civil Procedure Act provides as follows; -
“Any person who considers himself aggrieved –
a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
Order 45 Rule 1 for the Civil Procedure Rules provides as follows; -
(1) Any person considering himself aggrieved –
a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply or a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
For a party to succeed in pursuing for Orders of Review, they must prove the following; -
a) That there is discovery of new and important matter or evidence, which was not in his knowledge or could not be produced by him after exercise of due diligence; or
b) That there is a mistake or error apparent on the face of the record; or
c) That there is a sufficient reason; and
d) An application for review must be made without unreasonable delay.
In Civil Appeal No. 2111 of 1996, National Bank of Kenya Vs Ndungu Njau, the Court of Appeal held that; -
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.”
In the case of Evan Bwire vs. Andrew Aginda Civil Appeal No. 147 of 2006 the Court of Appeal stated as follows; -
“An application for review will only be allowed on strong grounds particularly if its effect will amount to reopening the application or case afresh.”
In the case of Sarder Mohamed vs. Charan Singh & Another 1959 EA 793, it was stated as follows; -
“Any other sufficient reason for the purposes of review refers to the ground analogous to the other two (for example error apparent on the face of the record and discovery of new and important matter).”
In the matter herein, the applicant was deprived of his property through consents unlawfully entered into by the Plaintiff and the Defendants. It was on the basis of the fraudulent consents that the Court adopted the same and occasioned eviction of the Applicant from the Suit property without granting him a day in Court. Were it not for the eviction, the Applicant could never have found out about the consent entered save that such eviction was inevitable as long as it aided the Plaintiff and the 1st Defendant in their malicious acts of disposing the property to unsuspecting third parties.
In conclusion, the applicant prays that the Honourable Court be pleased to uphold the Applicant's prayers in the Application by reviewing the Consent Judgment and making its Orders that shall bring light and justice at the end.
1ST DEFENDANTS CASE
The 1st Defendant/Respondent's submits that the applicant's Notice of Motion is an abuse of the court process. The Plaintiff/Respondent herein fled the present suit and served all parties herein inclusive of the Interested Party Applicant; whose service is confirmed by the appointment of the firm of Mwakireti & Company Advocates who entered appearance on behalf of the Applicant in the matter. This salient fact is well captured on the Court Tracking System. However, it is quite unfortunate that since the appointment of the said law firm neither the Applicant nor his advocates on record participated in the suit until its ultimate determination on 19/03/2025 when the litigants recorded a consent which finalized the dispute between the litigants.
The lack of participation by the Applicant herein cannot be wished away as he trampled on his right to a fair hearing and only elected to awake from his slumber on 19/03/2025 when he filed a Notice of Change of Advocates from the previous advocates to the firm of Barayan & Associates Advocates. Even then, the said law firm never attended the virtual court session to represent and/or defend their client's interests. Instead the Applicant made a half hearted attempt of filing a Motion seeking to set aside the consent judgment and enjoy exparte interim orders. When this attempt failed, he unilaterally opted to withdraw the said Motion in its entirety without even serving the same to the other litigants.
The 1st defendant argues that equity does not aid the indolent. According to the 1st defendant, the applicant had the period of 2022 to 2025 to regularize his documentation and/or participation in the suit; having confirmed service of pleadings in the matter by appointing the firm of Mwakireti & Company Advocates to represent his interests. The Applicant's indolence in participating in the matter has not been explained. The defendant refers to the case of Benjoh Amalgated Limited & another v Kenya Commercial Bank Limited [2014] eKLR where court held as follows;
“63. In dealing with laches, Halsbury's Laws of England, 4th ed. Vol. 16(2) at 910 has this to say; “A claimant in equity is bound to prosecute his claim without undue delay. This is in pursuance of the principle which has underlain the statutes of limitation equity aids the vigilant, not the indolent' or 'delay defeats equities. A Court of equity, refuses its aid to stale demands where the claimant has slept upon his right and acquiesced for a great length of time. He is then said to be barred by his unconscionable delay (laches').”
The aforementioned notwithstanding, 1st defendant contends that since the Applicant's bone of contention emanates from a contractual agreement of which the 1st Defendant was not privy to it is our subnission that the Applicant's recourse can still be entertained as against the Plaintiff/Respondent in a different forum and not the present suit. This shall ensure that the principles of equity and natural justice are not trampled over at the expense of the litigants who fully participated in the case to its ultimate conclusion on 19/03/2025.
The plaintiff on his part submits that when the suit was instituted in 2022, the Applicant was enjoined as an Interested Party, and duly served with all the pleadings. However the Applicant failed to take any deliberate step to be made a party to the suit in terms of the Mutunga Rules. The Applicant chose not to be involved in the proceedings in the suit. The Plaintiff and the Defendants agreed on the dispute and reached a settlement. In the Order issued by Hon. Justice Kibunja on 19th March 2025, it was ordered as follows:
a) The two consents dated 14th February 2025 and 25th February 2025 are hereby adopted as order of the Court.
b) The suit herein is marked as settled in terms of the two consents.
c) The file is closed.
The plaintiff submits that the suit having been settled and file closed, there is currently no suit in which the Applicant can be enjoined as a party. The suit is dead and the Applicant's Notice of Motion dated 23rd October 2025 is incapable of breathing new life into a settled and closed file in which the Applicant was never a party. It is also instructive to note that the Applicant had filed a Notice of Motion application dated 20th March 2025 seeking similar orders to the instant application. Having failed to obtain favourable orders, the Applicant withdrew the said Application vide a Notice of Withdrawal dated 24th March 2025. The Application before the Court is very similar with the aforesaid withdrawn application. This amounts to abuse of the Court process and an attempt at a second bite at the cherry. On the authority of the MUKISA BISCUIT case, [1969] E.A 696, the plaintiff urges this Honourable Court to allow the Preliminary Objection dated 15th December 2025 with costs to the Plaintiff/Respondent.
Analyisis and Determination
The right to be heard is a fundamental legal and human right ensuring that no decision affecting an individual’s rights, property, or freedoms is made without giving them a fair opportunity to present their side of the story. It is the cornerstone of due process, natural justice, and democratic participation.
in Legal and Judicial Proceedings in court and administrative settings, the right to be heard (often known by the Latin legal maxim audi alteram partem, meaning "listen to the other side" requires that the individuals must receive adequate and timely notice of the case or charges brought against them. They must be given an adequate opportunity to make representations, present evidence, and challenge opposing claims, either orally or in writing. Decision-makers must act fairly, consider the provided arguments before making a conclusion, and remain completely unbiased.
Similarly, in S.M. N. V Z. M. S & 3 Others [2017] e KLR, the court held that to set aside a consent, any one of the following circumstances must be shown; -
i. Where the consent was obtained fraudulently,
ii. In collusion between affected parties
iii. Where the agreement is contrary to the policy of the court;
iv. Where the consent is based on insufficient material facts;
v. Where the consent is based on misapprehension or ignorance of material facts;
vi. Any other sufficient reason.(My underlining)
Order 45 Rule 1 for the Civil Procedure Rules provides as follows; -
(1) Any person considering himself aggrieved –
a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, (My underlining) desires to obtain a review of the decree or order, may apply or a review of judgment to the court which passed the decree or made the order without unreasonable delay.
This court has considered the rival submissions and finds that the preliminary objection fails because the applicant was already an interested party to the proceedings and therefore he is not a stranger in this proceedings and therefore he does not need to be enjoined as a party to apply for review under section 80 of the Civil procedure Act Cap 21 Laws of Kenya.
Moreover, one does not need to be a party to proceeding in order to apply for review under order 45 of the Civil Procedure Rules 2010. Any person (not any party) aggrieved by the decision of the court can apply for review. One does not have to be a party.
Ultimately, I do find that the applicant has established sufficient reasons for the review of the consent judgment dated 19th March, 2025 because he was not involved in the entering of the said judgment and yet he was a party and therefore his right to be heard was violated. Moreover, the decision directly affected him having purchased the suit property from the plaintiff, a fact admitted by the plaintiff.
The upshot of the above is that the application is allowed in the following terms:-
a) The Consent judgment dated 19th March, 2025 be set aside and/or vacated.
b) The Suit be reopened for hearing on its merits with the Applicant duly enjoined as a 3rd defendant.
c) The 3rd defendant to file the defence within 14 days.
d) Mention on 24th September 2026.
e) The status quo ante the consent judgment to be maintained.
a) This Application be certified as urgent and service be dispensed with in the first instance.
b) The Honourable Court be pleased to enjoin the Applicant/Intended interested party to these proceedings for purposes of protecting his proprietary interest in Plot No.3448/IIIMN Mombasa.
c) Pending the hearing and determination of this Application interpartes, the Honourable Court be pleased to grant a temporary injunction restraining the Plaintiff and the 1st Defendant, their servants, agents. or assigns from selling. transferring, alienating, charging or entering upon, or in any way interfering with the suit property.
d) There be a stay of execution and enforcement of the Consent Judgment and all consequential Orders entered on 19th March, 2025 pending hearing and determination of this Application and Suit.
e) The Consent judgment dated 19th March, 2025 be set aside and/or vacated.
f) Upon setting aside, the Suit be reopened for hearing on its merits with the Applicant duly enjoined as a party.
g) Upon reopening the Suit herein, and the Applicant being enjoined as a party. be granted leave to put in his documents out of time.
h) Costs of the Application be in the cause.
The applicant states that he had been at all material times between December, 2021 to March, 2025 in occupation of the property known as Plot No. 3448/III/MN, situate at Mtwapa Area, having purchased the same from the Plaintiff herein, who at all times confirmed and upheld such sale of the subject property to the Applicant herein.
In a shocking turn of events, the Plaintiff who filed the Suit herein against the 1st Defendant on allegations of fraudulently trying to invade the Suit property colluded with the defendant to enter into a Consent which was used to oust the Applicant herein from the Suit Property with the help of Police Officers from Mtwapa Police Station. Aggrieved, the Applicant filed an Application which was withdrawn and in pursuit of his proprietary rights filed a Land Suit ELCLC NO. E045 OF 2025 before the Mombasa Environment and Land Court where he sued the Respondents herein.
However, on the 15th October, 2025, the Honourable Court delivered a Ruling stating that the aforesaid Suit ELCLC NO. E045 OF 2025 was not res judicata, and that the Applicant herein had locus standi to pursue his rights redirecting him to file the instant Application.
The Plaintiff/Respondent in response filed a Notice of Preliminary Objection dated the 15th December, 2025 on the following grounds; -
a) THAT the Applicant cannot possibly seek to be enjoined in a Suit that has been heard, determined and settled and file closed.
b) THAT the Suit is as dead as a dodo and the Applicant's Application is incapable of breathing new life and or resurrecting the Suit.
c) THAT since the Applicant was never a party at the time the Suit was compromised and settled, his recourse, if any against the parties herein, lies elsewhere.
The 1st Defendant/Respondent equally filed a Replying Affidavit sworn on the 15th December, 2025 in response to the Applicant's Application of 24th October, 2025 stating that the Applicant had been duly served and represented by Counsel Messrs Mwakireti and Company Advocates, a fact which remains unproven before the Court and the records. Further, the 1st Defendant alleges indolence of the Applicant in pursuing his interests in the Suit.
THE APPLICANT CASE
The applicant argues that the Preliminary Objection dated 15th December, 2025 by the Plaintiff does not meet the threshold of an Objection by the Law and Precedents and the same should not be sustained and that the Applicant has met the threshold for joinder and for setting aside the Consent Judgment of 19th March, 2025. The applicant argues that he has also met the threshold for grant of review Orders.
The applicant refers to the Black Law Dictionary that defines a preliminary Objection as being:
“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”
The applicant submits that in the matter of Mukisa Biscuits Manufacturing Co. Ltd (supra) where Lord Charles Newbold P. held that a proper preliminary objection constitutes a pure points of law. The Learned Judge then held that: -
“The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary objection. A preliminary Objection is in the nature of what used to be a demurrer it raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought in the exercise of judicial discretion. The improper raising of points by way of Preliminary objection does nothing but unnecessarily increase costs and, on occasion, confuse the issue. The improper practice should stop”.
The applicant further relies on the decision of Attorney General & another v Andrew Mwaura Githinji & another [2016] eKLR”: - as it explicitly extrapolates in a more concise and surgical precision what is tantamount to the scope, nature and meaning of a Preliminary Objection inter alia: -
i. A Preliminary Objection raised a pure point of law which is argued on the assumptions that all facts pleaded by other side are correct.
ii. A Preliminary Objection cannot be raised if any fact held to be ascertained or if what is sought is the exercise of judicial discretion; and
iii. The improper raise of points by way of preliminary objection does nothing but unnecessary increase of costs and on occasion confuse issues in dispute.
Further the applicant cites the case of: - Oraro v Mbaja [2005] eKLR 141, on the nature of Preliminary Objections observed that:
“A preliminary objection is now well identified as and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the process of evidence. Any assertion which claims to be a preliminary objection and yet it bears factual aspects calling for proof or seeks to adduce evidence for its authentication is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed. Where a court needs to investigate facts, a matter cannot be raised as a preliminary objection anything that purports to be a preliminary objection must not deal with disputed facts and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence.”
The applicant cites the case of -United Insurance Company Limited v Scholastica A - Kisumu HCC Appeal No. 6 of 2005(2005) LLR 7396”, the Court held that; “A preliminary Objection must be based on a point of law which is clear and beyond any doubt and Preliminary Objection which is based on facts which are disputed cannot be used to determine the whole matter as the facts must be precise and clear to enable the Court to say the facts are contested or disputed”
The applicant submits that from the above holdings of the Courts, it is clear that a preliminary Objection must be raised on a pure point of law and no fact should be ascertained from elsewhere. See also the case of “In the matter of Siaya Resident Magistrate Court Kisumu HCCMisc. App No. 247 of 2003” where the Court held that: -“A Preliminary Objection cannot be raised if any facts have to be ascertained.”
The Plaintiff's allegations that this matter was heard, determined and settled need the Court to peruse through the Proceedings which contrary to what has been submitted that the Applicant herein was served with documents but failed to seek leave to be enjoined remain unproven and scrutiny must be done to ascertain such facts. The Plaintiff has never filed an Affidavit of Service demonstrating service of summons upon the Applicant. Subsequently, no proof has been tendered that the Applicant was ever heard and the matter determined on merit basis. If anything, from the look of the typed Proceedings, the Plaintiff is the only party who had given sworn testimony at a hearing before the Honourable Justice Kibunja, and even so, he confirmed under Oath that the Plaintiff had duly sold the Suit Property to the Applicant. This is further affirmed in the Ruling of Honourable Justice Munyao Sila delivered on the 28th September, 2022. In a nutshell, the applicant submits that the objection raised herein cannot be sustained for reasons that the Court shall need proof that indeed the Suit was heard and determined.
The applicant further submits that he has met the threshold for joinder. Order 1 Rule 10 (2) of the Civil Procedure Rules grants provides; -
“The court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as Plaintiff or Defendant, be struck out, and that the name of any person who ought to have been joined, whether as Plaintiff or Defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”
The Court may at any stage of the proceedings either on application by a party or on its own motion add a party to the Suit if such party is necessary for the determination of the issues in dispute or whose presence is necessary in order to enable the court to effectively and completely adjudicate upon and settle all questions involved in the suit. Therefore, the issue of joinder of parties is allowed in law and can be done at any state of the proceedings. The Honourable Justice Kibunja in his Ruling of 15th October, 2025 noted that the Applicant had locus standi in this Suit and recommended that he pursues his proprietary interests in this matter.
In the case of “Joseph Njau Kingori v Robert Maina Chege & 3 others [2002] eKLR”, Nambuye, J (as she then was) set out the guiding principles applications seeking for joinder of parties as follows:-
“…parties cannot be added so as to introduce quite a new cause of action or to alter the nature of the suit. Necessary parties who ought to have been joined are parties who are necessary to the Constitution of the suit without whom no decree at all can be passed. Therefore, in case of a Defendant two conditions must be met:
1) There must be a right to some relief against him in respect of the matter involved in the suit.
2) His presence should be necessary in order to enable the Court effectively and completely to adjudicate upon and settle all the questions involved in the suit being one without whom no decree can be made effectively and one whose presence is necessary for complete and final decision on the questions involved in the proceedings.
The applicant has demonstrated that he had taken ownership of the Suit Property by virtue of purchasing the same from the Plaintiff, a fact that is glaring from the record by virtue of the Affidavits and Sworn Testimony of the Plaintiff's Director before a Court of Law. The Applicant has further annexed evidence of constructing a permanent house in the Suit property which he had been in possession prior to the Consent Judgment that saw him being evicted unheard and in contravention of his rights under Article 40 of the Constitution of Kenya. Any decision that ought to be made in Court regarding the Suit Property directly affects the Applicant.
The applicant cites the case of Francis Karioki Muruatetu & Another v Republic & 5 Others Petition No. 15 as consolidated with No. 16 of 2013 [2016] e KLR, the Supreme Court of Kenya set out the following principles for joinder;
a) The personal interest or stake that the party has in the matter must be set out in the application. The interest must be clearly identifiable and must be proximate enough, to stand apart from anything that is merely peripheral.
b) The prejudice to be suffered by the Intended Interested Party in case of non-joinder, must also be demonstrated to the satisfaction of the court. It must also be clearly outlined and not something remote.
c) Lastly, a party must, in its application, set out the case and or submissions it intends to make before the court, and demonstrate the relevance of those submissions. It should also demonstrate that these submissions are not merely a replication of what the other parties will be making before the court.
It is therefore the applicant’s submissions that the Plaintiff and the 1st and 2nd Defendants knowingly colluded to enter into Two (2) Consents without the knowledge and involvement of the Applicant herein which Consents were adopted as Judgment by the Court unaware of the misrepresentation. The impact of the aforesaid consents is that the Applicant was forcefully evicted from his property in contravention of Article 40 which vests proprietary rights upon him, which rights cannot be taken away without due process. It is therefore the applicant’s prayer that he be enjoined as a party to enable him pursue his rights and in conformation of the directions issued on 15th October, 2025.
The applicant further submits that he has met the threshold for setting aside the Consent Judgment of 19th March, 2025. The principles for setting aside a consent are well settled. There must be a demonstration of fraud or collusion or misrepresentation or mistake or that the consent is contrary to the policy of the court or for any sufficient cause. In the case of -Flora Wasike v Destimore Wamboko- [1988] e KLR, it was held as follows;
“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 setting a contract aside or if certain conditions remain to be fulfilled, which are not carried out.”
Similarly, in S.M. N. V Z. M. S & 3 Others [2017] e KLR, the court held that to set aside a consent, any one of the following circumstances must be shown; -
i. Where the consent was obtained fraudulently,
ii. In collusion between affected parties
iii. Where the agreement is contrary to the policy of the court;
iv. Where the consent is based on insufficient material facts;
v. Where the consent is based on misapprehension or ignorance of material facts;
vi. Any other sufficient reason.
In the instant case, the Plaintiff and the Defendants agreed to exclude the Applicant from the contents of the Consent despite the testimony of the Plaintiff confirming that they had indeed sold the subject Suit Property to the Applicant who had enjoyed peaceful occupation and even developed a permanent house on the property which facts were within the knowledge of the Plaintiff and the 1st Defendant. They unilaterally, colluded to enter into a fraudulent consent and through material non-disclosure caused the Court to adopt their illegal Consents which they further used the Police Officers based at Mtwapa to evict the Applicant who had no other recourse but to obtain Interim Orders in ELCLC E045 OF 2025.
The applicant submits that since the unlawful eviction of the Applicant from the Suit Property in March, 2025, the 1st Defendant with the help of the Plaintiff have made several attempts at selling off the Suit property to unsuspecting third parties, which actions further show their intent into colluding to enter the fraudulent consent.
It is to be noted that the Plaintiff had filed criminal complaints against the 1st Defendant for fraudulent transfer of the Suit property. The Ruling of 28th September, 2022 and the records before the Honourable Court shed the clarity surrounding the ownership of the Suit Property and the lack of clear circumstances on how the 1st Defendant acquired the property. Yet in a turn of events, the Plaintiff who sued the 1st Defendant for fraud was now entering into consents that deprived the Applicant of his rightful property. It is on the basis of fraud, collusion and material non- disclosure of facts that the Consent Judgment of 19th March, 2025 ought to be set aside.
The applicant argues that he has met the threshold for grant of review Orders.
Section 80 of the Civil Procedure Act provides as follows; -
“Any person who considers himself aggrieved –
a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.
Order 45 Rule 1 for the Civil Procedure Rules provides as follows; -
(1) Any person considering himself aggrieved –
a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply or a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
For a party to succeed in pursuing for Orders of Review, they must prove the following; -
a) That there is discovery of new and important matter or evidence, which was not in his knowledge or could not be produced by him after exercise of due diligence; or
b) That there is a mistake or error apparent on the face of the record; or
c) That there is a sufficient reason; and
d) An application for review must be made without unreasonable delay.
In Civil Appeal No. 2111 of 1996, National Bank of Kenya Vs Ndungu Njau, the Court of Appeal held that; -
“A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established.”
In the case of Evan Bwire vs. Andrew Aginda Civil Appeal No. 147 of 2006 the Court of Appeal stated as follows; -
“An application for review will only be allowed on strong grounds particularly if its effect will amount to reopening the application or case afresh.”
In the case of Sarder Mohamed vs. Charan Singh & Another 1959 EA 793, it was stated as follows; -
“Any other sufficient reason for the purposes of review refers to the ground analogous to the other two (for example error apparent on the face of the record and discovery of new and important matter).”
In the matter herein, the applicant was deprived of his property through consents unlawfully entered into by the Plaintiff and the Defendants. It was on the basis of the fraudulent consents that the Court adopted the same and occasioned eviction of the Applicant from the Suit property without granting him a day in Court. Were it not for the eviction, the Applicant could never have found out about the consent entered save that such eviction was inevitable as long as it aided the Plaintiff and the 1st Defendant in their malicious acts of disposing the property to unsuspecting third parties.
In conclusion, the applicant prays that the Honourable Court be pleased to uphold the Applicant's prayers in the Application by reviewing the Consent Judgment and making its Orders that shall bring light and justice at the end.
1ST DEFENDANTS CASE
The 1st Defendant/Respondent's submits that the applicant's Notice of Motion is an abuse of the court process. The Plaintiff/Respondent herein fled the present suit and served all parties herein inclusive of the Interested Party Applicant; whose service is confirmed by the appointment of the firm of Mwakireti & Company Advocates who entered appearance on behalf of the Applicant in the matter. This salient fact is well captured on the Court Tracking System. However, it is quite unfortunate that since the appointment of the said law firm neither the Applicant nor his advocates on record participated in the suit until its ultimate determination on 19/03/2025 when the litigants recorded a consent which finalized the dispute between the litigants.
The lack of participation by the Applicant herein cannot be wished away as he trampled on his right to a fair hearing and only elected to awake from his slumber on 19/03/2025 when he filed a Notice of Change of Advocates from the previous advocates to the firm of Barayan & Associates Advocates. Even then, the said law firm never attended the virtual court session to represent and/or defend their client's interests. Instead the Applicant made a half hearted attempt of filing a Motion seeking to set aside the consent judgment and enjoy exparte interim orders. When this attempt failed, he unilaterally opted to withdraw the said Motion in its entirety without even serving the same to the other litigants.
The 1st defendant argues that equity does not aid the indolent. According to the 1st defendant, the applicant had the period of 2022 to 2025 to regularize his documentation and/or participation in the suit; having confirmed service of pleadings in the matter by appointing the firm of Mwakireti & Company Advocates to represent his interests. The Applicant's indolence in participating in the matter has not been explained. The defendant refers to the case of Benjoh Amalgated Limited & another v Kenya Commercial Bank Limited [2014] eKLR where court held as follows;
“63. In dealing with laches, Halsbury's Laws of England, 4th ed. Vol. 16(2) at 910 has this to say; “A claimant in equity is bound to prosecute his claim without undue delay. This is in pursuance of the principle which has underlain the statutes of limitation equity aids the vigilant, not the indolent' or 'delay defeats equities. A Court of equity, refuses its aid to stale demands where the claimant has slept upon his right and acquiesced for a great length of time. He is then said to be barred by his unconscionable delay (laches').”
The aforementioned notwithstanding, 1st defendant contends that since the Applicant's bone of contention emanates from a contractual agreement of which the 1st Defendant was not privy to it is our subnission that the Applicant's recourse can still be entertained as against the Plaintiff/Respondent in a different forum and not the present suit. This shall ensure that the principles of equity and natural justice are not trampled over at the expense of the litigants who fully participated in the case to its ultimate conclusion on 19/03/2025.
The plaintiff on his part submits that when the suit was instituted in 2022, the Applicant was enjoined as an Interested Party, and duly served with all the pleadings. However the Applicant failed to take any deliberate step to be made a party to the suit in terms of the Mutunga Rules. The Applicant chose not to be involved in the proceedings in the suit. The Plaintiff and the Defendants agreed on the dispute and reached a settlement. In the Order issued by Hon. Justice Kibunja on 19th March 2025, it was ordered as follows:
a) The two consents dated 14th February 2025 and 25th February 2025 are hereby adopted as order of the Court.
b) The suit herein is marked as settled in terms of the two consents.
c) The file is closed.
The plaintiff submits that the suit having been settled and file closed, there is currently no suit in which the Applicant can be enjoined as a party. The suit is dead and the Applicant's Notice of Motion dated 23rd October 2025 is incapable of breathing new life into a settled and closed file in which the Applicant was never a party. It is also instructive to note that the Applicant had filed a Notice of Motion application dated 20th March 2025 seeking similar orders to the instant application. Having failed to obtain favourable orders, the Applicant withdrew the said Application vide a Notice of Withdrawal dated 24th March 2025. The Application before the Court is very similar with the aforesaid withdrawn application. This amounts to abuse of the Court process and an attempt at a second bite at the cherry. On the authority of the MUKISA BISCUIT case, [1969] E.A 696, the plaintiff urges this Honourable Court to allow the Preliminary Objection dated 15th December 2025 with costs to the Plaintiff/Respondent.
Analyisis and Determination
The right to be heard is a fundamental legal and human right ensuring that no decision affecting an individual’s rights, property, or freedoms is made without giving them a fair opportunity to present their side of the story. It is the cornerstone of due process, natural justice, and democratic participation.
in Legal and Judicial Proceedings in court and administrative settings, the right to be heard (often known by the Latin legal maxim audi alteram partem, meaning "listen to the other side" requires that the individuals must receive adequate and timely notice of the case or charges brought against them. They must be given an adequate opportunity to make representations, present evidence, and challenge opposing claims, either orally or in writing. Decision-makers must act fairly, consider the provided arguments before making a conclusion, and remain completely unbiased.
Similarly, in S.M. N. V Z. M. S & 3 Others [2017] e KLR, the court held that to set aside a consent, any one of the following circumstances must be shown; -
i. Where the consent was obtained fraudulently,
ii. In collusion between affected parties
iii. Where the agreement is contrary to the policy of the court;
iv. Where the consent is based on insufficient material facts;
v. Where the consent is based on misapprehension or ignorance of material facts;
vi. Any other sufficient reason.(My underlining)
Order 45 Rule 1 for the Civil Procedure Rules provides as follows; -
(1) Any person considering himself aggrieved –
a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, (My underlining) desires to obtain a review of the decree or order, may apply or a review of judgment to the court which passed the decree or made the order without unreasonable delay.
This court has considered the rival submissions and finds that the preliminary objection fails because the applicant was already an interested party to the proceedings and therefore he is not a stranger in this proceedings and therefore he does not need to be enjoined as a party to apply for review under section 80 of the Civil procedure Act Cap 21 Laws of Kenya.
Moreover, one does not need to be a party to proceeding in order to apply for review under order 45 of the Civil Procedure Rules 2010. Any person (not any party) aggrieved by the decision of the court can apply for review. One does not have to be a party.
Ultimately, I do find that the applicant has established sufficient reasons for the review of the consent judgment dated 19th March, 2025 because he was not involved in the entering of the said judgment and yet he was a party and therefore his right to be heard was violated. Moreover, the decision directly affected him having purchased the suit property from the plaintiff, a fact admitted by the plaintiff.
The upshot of the above is that the application is allowed in the following terms:-
a) The Consent judgment dated 19th March, 2025 be set aside and/or vacated.
b) The Suit be reopened for hearing on its merits with the Applicant duly enjoined as a 3rd defendant.
c) The 3rd defendant to file the defence within 14 days.
d) Mention on 24th September 2026.
e) The status quo ante the consent judgment to be maintained.