'Christopher Kibe Mungai, (hereinafter referred to the applicant and proposed 3rd defendant) has come to thiscourt vide application dated 30th July 2025 seeking orders that the Honorable Court be pleased to issue an order of stay of the Consent dated 1st April, 2025 and adopted by the Court on 2nd April, 2025 pending hearing and determination of this suit and that the Honorable Court be pleased to set aside the Consent Order dated 2nd April, 2025 between the Plaintiff and the Defendants herein. Upon the grant of the above prayers, the Honorable Court be pleased to reopen pleadings and direct that the, hearing of this suit to commence de novo. The applicant prays that the costs of this application be borne by the plaintiff and the defendants herein jointly and/or severally.
The application is based on grounds that that the Applicant/Proposed 3rd Defendant Christopher Kibe Mungai, an advocate of the High Court of Kenya is the registered owner of the suit property namely Land Parcel No. Nakuru Municipality Block No. 17/95.
The Consent Order dated 1st April, 2025 between the Plaintiff and the Defendant provides that an order be and is hereby issued compelling the Land Registrar, Nakuru County to register the transfer of lease and issue a Certificate of Lease in favor of the Plaintiff herein, Salim Gulamhussein Gilani, with respect to Land Parcel No. Nakuru Municipality Block NO. 17/95. Each party to bear their own costs. This matter be marked settled.
The applicant contends that this application is extremely urgent because the execution of the Consent Order dated 2nd April, 2025 will result in the transfer of lease and issuance of Certificate of Lease in favor of the plaintiff herein and yet the Consent Order dated 2nd April, 2025 is prima facie illegal and fraudulent as the applicant — being the registered owner was neither a party in this case nor was he involved in recording the same. Whereas the Applicant is yet to obtain the pleadings in this matter, it is apparent that the Consent Order has been obtained through willful non-disclosure of material facts and documents and gross misrepresentation.
The applicant argues that given that the 1st Defendant is neither the beneficial nor the registered owner of the suit property, he could not lawfully sell the same to the Plaintiff. The Applicant has reasons to believe that the plaintiff willfully purchased the suit property from the 1st Defendant in the knowledge that the 1st defendant was neither the beneficial nor the registered owner of the suit property. The recording of the consent dated 1st April, 2025 amounts to willful misleading of this Honorable Court which constitutes contempt of court.
The application is supported by the affidavit of Christopher Kibe Mungai whose gist is that he is the registered owner of the suit property. According to Mr Kibe Mungai, the property was 1st registered in the names of Joseph Kiprono Cheruiyot who sold the property to Mr Kibe at a consideration of Kshs400,000. Before purchasing the property, he conducted an official search and confirmed that Mr Joseph Kiprono Cheruiyot was the registered owner. He purchased the property with other persons named in the affidavit. He was registered with his co-purchasers as proprietors. He produced the certificate of title. They have been paying rates to Nakuru County Government. He produced the rate receipts. The applicant contents that the consent dated 1st April 2025 and adopted on 2nd April 2025 affects his interest.
In reply the plaintiff, Salim GulamHussein Gilani states the application for joinder lacks basis as the court is now functus officio by dint of the consent judgment of 2nd April 2025. According to the plaintiff the applicant was not a party to this suit and therefore cannot hijack the proceedings. The applicant should sue Josiah Kiprono Cheruiyot who sold them land and yet he had no title. The application is unmerited according to the plaintiff and should be dismissed with costs.
The 1st defendant, Daniel Macua Ndonga also filed a replying affidavit stating that the application is frivolous and without merit. He claims to be the registered owner of the suit land prior to disposition. He was issued with a certificate of lease on 17th August 2016. The lease document was registered on 11th August 2016 prior to issuance of certificate of lease. He followed the right procedure to obtain title. He claims to have sold the land to the plaintiff and surrendered all relevant documents to the advocates for purposes of transfer to the plaintiff. The plaintiffs sued him and the 2nd defendant for a refund of the purchase price or a mandatory injunction against the Land Registrar, Nakuru to transfer the property to the 1st defendant on allegation that the 2nd defendant had frustrated the process of transfer as the register appeared to have 2 white cards; one in the name of the 1st defendant and the other in the names of Josiah Kiprono Cheruiyot. He states that the parties entered into a consent after ascertaining that the lease document in the name of Josiah Kiprono Cherioyot was not genuine as it did not originate from the Commissioner of Lands. He contends that the court is functus officio to the extent of adopting of the consent as the judgment of the court.
The applicant submits that he is a necessary party in this suit as he is the registered owner of the suit-land and that the reliefs sought by the plaintiff will result in revocation of his title without him being heard which runs against the tenets of Articles 27, 40 and 50 of the Constitution of Kenya 2010. The applicant relies on several locus classicus decisions of the courts in Kenya including JMK vs MWM and Another in Civil Appeal No 15 of 2015 Eklr where the court of appeal held that joinder is possible even after judgment in order to secure the right to be heard. The applicant further argues that the court has no jurisdiction to adopt a consent in a suit concerning a property whose registered owner is not a party. The applicant further submits that the consent dated 1st of April 2025 was procured through fraud as it had been pleaded by both the plaintiff and the 2nd defendant that the title issued to the 1st defendant was procured fraudulently and therefore the consent is illegal of itself and in its effect and should be set aside with costs and that the suit should be heard de-novo.
The plaintiff on his part submits that the prayer that the applicant be enjoined in this matter as the 3rd defendant is not known in law and that the applicant lacks the locus standi to present this prayer as the suit was commenced by the plaintiff against the defendants and cannot be extended to include the applicants. That the applicant can only apply to be an interested party as the court cannot make a party a defendant in a case. That the suit having been marked as settled and concluded by a consent judgment the prayer to be enjoined cannot be granted in a matter that has been concluded as the court is funtus officio. On the issue as to whether the court should set aside the consent order of 1st April 2025 and adopted on 2nd April 2025, the plaintiff argues that the consent is valid after having been signed by the parties in the suit and that the applicant’s title was found to have been obtained fraudulently. The plaintiff further argues that the applicant has not met the threshold of setting aside the consent judgment which has the effect of a contract and therefore can only be set aside on the basis of fraud, collusion and mistake or if it was entered into without sufficient material facts or in misapprehension of material facts. According to the plaintiff no such material has been availed.
On whether this court should reopen this case and order that the matter proceeds de novo the plaintiff submits that the court is functus officio and therefore cannot grant such an order. Ultimately, the plaintiff submits that allowing the application will result into unjust deprivation of the plaintiff’s right to enjoy the fruits of a successful litigation and the terms of the consent judgment entered on 2nd April 2025 on merit.
The 1st defendant submits that the applicant should not be enjoined in this matter because he lacks locus standi to bring the application as there are no ongoing proceedings for the applicant to be enjoined as a 3rd defendant. In essence the 1st defendant argues that the court is functus officio. On the setting aside of the consent the 1st defendant argues that the consent is incapable of being stayed or set aside as there is no pending suit and that the court is functus officio and therefore the court should not reopen the case. The application should be dismissed with costs.
In my analysis and determination 0f this matter, I do observe that courts have walked the way of joinder of parties in suits with a lot of precaution because the discretion to make an order of joinder is required to exercised judiciously. The court is guided by Order 1 Rule (10) (2) of the Civil Procedure Rules which empowers the court, at any stage of the proceedings, upon application by either party or suo moto, to order the name of a person who ought to have been joined or whose presence before the court is necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit, to be added as a party.
Commenting on this provision, the learned authors of Sarkar’s Code of Civil Procedure (11th Ed. Reprint, 2011, Vol. 1 P. 887), state that:
“The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties.”
The Court of Appeal adopted the same approach in CENTRAL KENYA LTD. V. TRUST BANK & 4 OTHERS, CA NO. 222 OF 1998, when it affirmed that the guiding principle in amendment of pleadings and joinder of parties is that:
“all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.”
I have considered the applicants, replying affidavit and rival submissions and do find that the applicant has demonstrated that he holds title to the suit property and therefore he is a necessary party. He has demonstrated that he bought the suit property from Josiah Kiprono Cheruiyot. The respondents have also demonstrated that the issue of ownership of the property by Josiah Kiprono Cheruiyot was raised by the Commissioner of Lands. Moreover, the plaintiff came to this court to obtain an order of transfer of the property because the Land Registar Nakuru had declined to the register the instruments of transfer as there existed another white card in favour of another person. The applicant has demonstrated the he has an interest in the suit property by virtue of the certificate of lease issued to him. Since the import of the consent order is to transfer the suit property to the plaintiff, it is prudent that the applicant be enjoined as a 3rd defendant.
On the issue as to whether the applicant herein can be enjoined after judgment has been entered by consent, I do find that the consent judgment affected the rights of the applicant to property and yet he was not heard. The courts of this land have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made.
In ONYANGO V. ATTORNEY GENERAL (1986-1989) EA 456, Nyarangi, JA asserted at page 459:
“I would say that the principle of natural justice applies where ordinary people who would reasonably expect those making decisions which will affect others to act fairly.”
At page 460 the learned judge added:
“A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.”
And in MBAKI & OTHERS V. MACHARIA & ANOTHER (2005) 2 EA 206, at page 210, this Court stated as follows:
“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”
IN JMK vs MWM & Another Civil Appeal no 15 of 2015 eklr, the Court of Appeal confronted with an appeal where the appellant had sought be enjoined in a matter in the Industrial Court but the Industrial Court found that he was not a party before judgment and therefore he could not be enjoined, observed that:-
“Having carefully considered this appeal, we are satisfied that the appellant ought to have been afforded an opportunity to be heard before he was condemned as a perpetrator of sexual harassment. We are equally satisfied that in the particular circumstances of this appeal, the industrial court ought to have reviewed and set aside its judgment dated 30th May 2014 to afford the appellant an opportunity to be heard.”
The grounds for setting aside a consent judgment can be summarized as follows:-
“i. Where the consent was obtained fraudulently
ii. In collusion between affected parties
iii. Where an 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.”
I do find that the applicant has demonstrated that he has identifiable interest in the suit property being the registered owner of the suit property but was not given an opportunity to be heard and therefore the consent dated 1st of April 2025 and adopted on 2nd April 2025 violated his right to be heard contrary to the provisions of Article 50 of the constitution of Kenya 2010 and the right to property guaranteed under Article 40 of the constitution of Kenya 2010 and therefore was entered against the law and policy of the court. The above said consent therefore violated the laws of Kenya. The consent was entered with concealment of material facts that the land was registered in the names of the applicant.
The upshot of the above is that the applicant is found to be a necessary party and is hereby enjoined as a 3rd defendant. It is clear that the consent dated 1st April 2025 and adopted on 2nd April 2025 affected the right of the applicant and that the same was entered without hearing the applicant in violation of the law.
Moreover, the Land Registrar Nakuru County who had rejected the registration of the documents of the plaintiff and 1st defendant because there existed another white card was not party to the consent and therefore the said consent was not signed by all the parties including the Land Registrar Nakuru. The application is allowed thus the consent dated 1st April 2025 and adopted on 2nd April 2025 between the Plaintiff and the Defendants is hereby set aside. . The pleadings are hereby re-opened and the hearing of this suit to commence de novo. The 3rd defendant to file and serve defence and counter claim within 14 days. The parties to be at liberty to amend pleadings within 14 days of service.
'
The application is based on grounds that that the Applicant/Proposed 3rd Defendant Christopher Kibe Mungai, an advocate of the High Court of Kenya is the registered owner of the suit property namely Land Parcel No. Nakuru Municipality Block No. 17/95.
The Consent Order dated 1st April, 2025 between the Plaintiff and the Defendant provides that an order be and is hereby issued compelling the Land Registrar, Nakuru County to register the transfer of lease and issue a Certificate of Lease in favor of the Plaintiff herein, Salim Gulamhussein Gilani, with respect to Land Parcel No. Nakuru Municipality Block NO. 17/95. Each party to bear their own costs. This matter be marked settled.
The applicant contends that this application is extremely urgent because the execution of the Consent Order dated 2nd April, 2025 will result in the transfer of lease and issuance of Certificate of Lease in favor of the plaintiff herein and yet the Consent Order dated 2nd April, 2025 is prima facie illegal and fraudulent as the applicant — being the registered owner was neither a party in this case nor was he involved in recording the same. Whereas the Applicant is yet to obtain the pleadings in this matter, it is apparent that the Consent Order has been obtained through willful non-disclosure of material facts and documents and gross misrepresentation.
The applicant argues that given that the 1st Defendant is neither the beneficial nor the registered owner of the suit property, he could not lawfully sell the same to the Plaintiff. The Applicant has reasons to believe that the plaintiff willfully purchased the suit property from the 1st Defendant in the knowledge that the 1st defendant was neither the beneficial nor the registered owner of the suit property. The recording of the consent dated 1st April, 2025 amounts to willful misleading of this Honorable Court which constitutes contempt of court.
The application is supported by the affidavit of Christopher Kibe Mungai whose gist is that he is the registered owner of the suit property. According to Mr Kibe Mungai, the property was 1st registered in the names of Joseph Kiprono Cheruiyot who sold the property to Mr Kibe at a consideration of Kshs400,000. Before purchasing the property, he conducted an official search and confirmed that Mr Joseph Kiprono Cheruiyot was the registered owner. He purchased the property with other persons named in the affidavit. He was registered with his co-purchasers as proprietors. He produced the certificate of title. They have been paying rates to Nakuru County Government. He produced the rate receipts. The applicant contents that the consent dated 1st April 2025 and adopted on 2nd April 2025 affects his interest.
In reply the plaintiff, Salim GulamHussein Gilani states the application for joinder lacks basis as the court is now functus officio by dint of the consent judgment of 2nd April 2025. According to the plaintiff the applicant was not a party to this suit and therefore cannot hijack the proceedings. The applicant should sue Josiah Kiprono Cheruiyot who sold them land and yet he had no title. The application is unmerited according to the plaintiff and should be dismissed with costs.
The 1st defendant, Daniel Macua Ndonga also filed a replying affidavit stating that the application is frivolous and without merit. He claims to be the registered owner of the suit land prior to disposition. He was issued with a certificate of lease on 17th August 2016. The lease document was registered on 11th August 2016 prior to issuance of certificate of lease. He followed the right procedure to obtain title. He claims to have sold the land to the plaintiff and surrendered all relevant documents to the advocates for purposes of transfer to the plaintiff. The plaintiffs sued him and the 2nd defendant for a refund of the purchase price or a mandatory injunction against the Land Registrar, Nakuru to transfer the property to the 1st defendant on allegation that the 2nd defendant had frustrated the process of transfer as the register appeared to have 2 white cards; one in the name of the 1st defendant and the other in the names of Josiah Kiprono Cheruiyot. He states that the parties entered into a consent after ascertaining that the lease document in the name of Josiah Kiprono Cherioyot was not genuine as it did not originate from the Commissioner of Lands. He contends that the court is functus officio to the extent of adopting of the consent as the judgment of the court.
The applicant submits that he is a necessary party in this suit as he is the registered owner of the suit-land and that the reliefs sought by the plaintiff will result in revocation of his title without him being heard which runs against the tenets of Articles 27, 40 and 50 of the Constitution of Kenya 2010. The applicant relies on several locus classicus decisions of the courts in Kenya including JMK vs MWM and Another in Civil Appeal No 15 of 2015 Eklr where the court of appeal held that joinder is possible even after judgment in order to secure the right to be heard. The applicant further argues that the court has no jurisdiction to adopt a consent in a suit concerning a property whose registered owner is not a party. The applicant further submits that the consent dated 1st of April 2025 was procured through fraud as it had been pleaded by both the plaintiff and the 2nd defendant that the title issued to the 1st defendant was procured fraudulently and therefore the consent is illegal of itself and in its effect and should be set aside with costs and that the suit should be heard de-novo.
The plaintiff on his part submits that the prayer that the applicant be enjoined in this matter as the 3rd defendant is not known in law and that the applicant lacks the locus standi to present this prayer as the suit was commenced by the plaintiff against the defendants and cannot be extended to include the applicants. That the applicant can only apply to be an interested party as the court cannot make a party a defendant in a case. That the suit having been marked as settled and concluded by a consent judgment the prayer to be enjoined cannot be granted in a matter that has been concluded as the court is funtus officio. On the issue as to whether the court should set aside the consent order of 1st April 2025 and adopted on 2nd April 2025, the plaintiff argues that the consent is valid after having been signed by the parties in the suit and that the applicant’s title was found to have been obtained fraudulently. The plaintiff further argues that the applicant has not met the threshold of setting aside the consent judgment which has the effect of a contract and therefore can only be set aside on the basis of fraud, collusion and mistake or if it was entered into without sufficient material facts or in misapprehension of material facts. According to the plaintiff no such material has been availed.
On whether this court should reopen this case and order that the matter proceeds de novo the plaintiff submits that the court is functus officio and therefore cannot grant such an order. Ultimately, the plaintiff submits that allowing the application will result into unjust deprivation of the plaintiff’s right to enjoy the fruits of a successful litigation and the terms of the consent judgment entered on 2nd April 2025 on merit.
The 1st defendant submits that the applicant should not be enjoined in this matter because he lacks locus standi to bring the application as there are no ongoing proceedings for the applicant to be enjoined as a 3rd defendant. In essence the 1st defendant argues that the court is functus officio. On the setting aside of the consent the 1st defendant argues that the consent is incapable of being stayed or set aside as there is no pending suit and that the court is functus officio and therefore the court should not reopen the case. The application should be dismissed with costs.
In my analysis and determination 0f this matter, I do observe that courts have walked the way of joinder of parties in suits with a lot of precaution because the discretion to make an order of joinder is required to exercised judiciously. The court is guided by Order 1 Rule (10) (2) of the Civil Procedure Rules which empowers the court, at any stage of the proceedings, upon application by either party or suo moto, to order the name of a person who ought to have been joined or whose presence before the court is necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit, to be added as a party.
Commenting on this provision, the learned authors of Sarkar’s Code of Civil Procedure (11th Ed. Reprint, 2011, Vol. 1 P. 887), state that:
“The section should be interpreted liberally and widely and should not be restricted merely to the parties involved in the suit, but all persons necessary for a complete adjudication should be made parties.”
The Court of Appeal adopted the same approach in CENTRAL KENYA LTD. V. TRUST BANK & 4 OTHERS, CA NO. 222 OF 1998, when it affirmed that the guiding principle in amendment of pleadings and joinder of parties is that:
“all amendments should be freely allowed and at any stage of the proceedings, provided that the amendment or joinder as the case may be, will not result in prejudice or injustice to the other party which cannot properly be compensated for in costs.”
I have considered the applicants, replying affidavit and rival submissions and do find that the applicant has demonstrated that he holds title to the suit property and therefore he is a necessary party. He has demonstrated that he bought the suit property from Josiah Kiprono Cheruiyot. The respondents have also demonstrated that the issue of ownership of the property by Josiah Kiprono Cheruiyot was raised by the Commissioner of Lands. Moreover, the plaintiff came to this court to obtain an order of transfer of the property because the Land Registar Nakuru had declined to the register the instruments of transfer as there existed another white card in favour of another person. The applicant has demonstrated the he has an interest in the suit property by virtue of the certificate of lease issued to him. Since the import of the consent order is to transfer the suit property to the plaintiff, it is prudent that the applicant be enjoined as a 3rd defendant.
On the issue as to whether the applicant herein can be enjoined after judgment has been entered by consent, I do find that the consent judgment affected the rights of the applicant to property and yet he was not heard. The courts of this land have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made.
In ONYANGO V. ATTORNEY GENERAL (1986-1989) EA 456, Nyarangi, JA asserted at page 459:
“I would say that the principle of natural justice applies where ordinary people who would reasonably expect those making decisions which will affect others to act fairly.”
At page 460 the learned judge added:
“A decision in breach of the rules of natural justice is not cured by holding that the decision would otherwise have been right. If the principle of natural justice is violated, it matters not that the same decision would have been arrived at.”
And in MBAKI & OTHERS V. MACHARIA & ANOTHER (2005) 2 EA 206, at page 210, this Court stated as follows:
“The right to be heard is a valued right. It would offend all notions of justice if the rights of a party were to be prejudiced or affected without the party being afforded an opportunity to be heard.”
IN JMK vs MWM & Another Civil Appeal no 15 of 2015 eklr, the Court of Appeal confronted with an appeal where the appellant had sought be enjoined in a matter in the Industrial Court but the Industrial Court found that he was not a party before judgment and therefore he could not be enjoined, observed that:-
“Having carefully considered this appeal, we are satisfied that the appellant ought to have been afforded an opportunity to be heard before he was condemned as a perpetrator of sexual harassment. We are equally satisfied that in the particular circumstances of this appeal, the industrial court ought to have reviewed and set aside its judgment dated 30th May 2014 to afford the appellant an opportunity to be heard.”
The grounds for setting aside a consent judgment can be summarized as follows:-
“i. Where the consent was obtained fraudulently
ii. In collusion between affected parties
iii. Where an 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.”
I do find that the applicant has demonstrated that he has identifiable interest in the suit property being the registered owner of the suit property but was not given an opportunity to be heard and therefore the consent dated 1st of April 2025 and adopted on 2nd April 2025 violated his right to be heard contrary to the provisions of Article 50 of the constitution of Kenya 2010 and the right to property guaranteed under Article 40 of the constitution of Kenya 2010 and therefore was entered against the law and policy of the court. The above said consent therefore violated the laws of Kenya. The consent was entered with concealment of material facts that the land was registered in the names of the applicant.
The upshot of the above is that the applicant is found to be a necessary party and is hereby enjoined as a 3rd defendant. It is clear that the consent dated 1st April 2025 and adopted on 2nd April 2025 affected the right of the applicant and that the same was entered without hearing the applicant in violation of the law.
Moreover, the Land Registrar Nakuru County who had rejected the registration of the documents of the plaintiff and 1st defendant because there existed another white card was not party to the consent and therefore the said consent was not signed by all the parties including the Land Registrar Nakuru. The application is allowed thus the consent dated 1st April 2025 and adopted on 2nd April 2025 between the Plaintiff and the Defendants is hereby set aside. . The pleadings are hereby re-opened and the hearing of this suit to commence de novo. The 3rd defendant to file and serve defence and counter claim within 14 days. The parties to be at liberty to amend pleadings within 14 days of service.
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