1. We have two motions for disposal, including the Defendants’ Notice of Motion Application dated September 16, 2025, seeking that:
a) The Court be pleased to issue a temporary stay of execution of the decree adopted vide consent dated 12th day of June, 2025.
b) The Court be pleased to set aside or vary the consent judgment dated the 12th day of June, 2025, and the subsequent decree dated the same date, recorded in court between the Plaintiff and Defendant Advocates on the 12th day of June, 2025, herein, and all consequential Orders pending the hearing and determination of the suit.
c) The Court be pleased to issue orders directing a retrial or a fresh hearing of the suit herein, on the basis that the consent recorded herein and adopted as a court judgment was made without the knowledge or authority of the defendants themselves, and that their views were not considered by their Advocate.
d) The Court be pleased to order that the file be reopened for hearing and determination on the merits.
e) the Court be pleased to issue temporary orders on the Status Quo, granting the applicant herein a stay and occupation of the disputed land Kilifi/Mtondia/3827, pending the hearing and determination of this application and the subsequent hearing of the main suit.
f) The costs of this Application are to be provided for.
2. The 2nd application is the Plaintiffs’ application dated 5th September, 2025, seeking that:
a) The Plaintiff/Decree-Holder be granted eviction Orders in terms of the Judgment of this Court entered on 12th June, 2025, and the Court Decree emanating from the said Judgment, issued by this Court on 12th June, 2025.
b) The Kilifi County Police Commander provides security for the execution of the Court Decree issued by this Court on 12th June, 2025.
c) Costs of this application should be provided for.
3. The two applications were canvassed through written submissions.
4. Based on the parties' submissions and the materials before me, the issues I frame for the Court's decision are whether to stay execution, whether to set aside the consent orders entered by the parties herein (1st application), whether to issue eviction orders arising from the parties' consent (2nd application), and who should bear the costs of the applications.
5. On the Defendants' application dated September 16, 2025, for a stay of execution, setting aside, and review of the consent orders being executed, they contend that when the orders of joint survey were issued, the survey was conducted. A report was issued, resulting in a decree being extracted for execution. Mr. Kinaro, their former advocate, had not given them the appropriate legal advice. They did not consent to the adoption of the joint Survey Report conducted and were therefore aggrieved by its adoption. That is why they have instructed another lawyer to set aside that consent.
6. Conversely, the Plaintiffs/Respondents contend that the joint survey was conducted voluntarily. When the report was circulated among the parties, Mr. Kinaro consented to adopt the surveyor's report, and his clients concurred fully. The sole point of disagreement related to the litigation costs, which the parties mutually agreed to bear individually.
7. Having reviewed the decisions cited to me, on grounds to set aside consent judgment/ orders, particularly Board of Trustees National Social Security Fund v Micheal Mwalo [2015] KECA 782 (KLR), the Court of Appeal held as follows:
“There is a plethora of cases in the High Court and in this Court stating the law on the issue of setting aside of a consent judgment. Some of them were cited by counsel in this matter. It will suffice to refer to a few of these.
31. In Wasike v Wamboko, the High Court at Kakamega (Gicheru J, as he then was) held -
“1. A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, or if certain conditions remain to be fulfilled which are not carried out.
2. The Civil Procedure Act (Cap 21) Section 67 (2) is not an absolute bar to challenging a decree passed with the consent of the parties where a party seeks to prove that the decree is invalid ab initio and should be rescinded or that there exist circumstances to warrant varying the decree.
3. In this case, there were no grounds which would justify the setting aside of the consent judgment.
Appeal dismissed.”
32. The position is clearly set out in Setton on Judgments and Orders (7th Edn), Vol. 1, pg 124 as follows-
“Prima Facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...
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.”
33. This passage was followed by the court of appeal in Brooke Bond Liebig Ltd V Mallya [1975] EA 266 at 269, in which 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.”
34. In Kenya Commercial Bank Ltd V. Benjoh Amalgamated Ltd, Githinji J (as he then was) considered the circumstances under which a consent Judgment can be set aside and referred to and relied on the decision in Hirani V. Kassam [1952] 19 EACA 131 in which the above passage from Seton on Judgments and Orders was approved. (The decision by Githinji J was reversed by this court on a different point.
“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 v Kenya Commercial Bank Limited Civ Apps 28 of 1982 and 69 of 1983. In Purcell v 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.”
35. In Kenya Commercial Bank Ltd V Specialised Engineering Co. Ltd [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.
8. There is no material before this Court showing that the former advocate for the Defendants/Applicants was not acting at his client’s behest, warranting the setting aside or review of the existing consent orders. Therefore, that application lacks merit and is hereby dismissed with costs.
9. On the 2nd application for eviction, after the survey report, the matter was compromised by allowing prayer a, b, and c of the plaint, which stated that the Defendants had no right to occupy or construct on the suit property; a mandatory injunction compelling the Defendants to demolish structures standing on the suit property; a permanent injunction to restrain the Defendants from interfering with the Plaintiffs’ peaceful occupation of the suit property; and each party was to bear its own costs.
10. Once consented to, the orders will follow and be enforced in accordance with the agreed-upon survey report, so that if the Defendants are found to have encroached upon the Plaintiffs’ portion, they should comply by removing any structures that could be offending and contrary to the joint Survey Report.
11. Consequently, in accordance with the consent orders in place, the application dated 5th September 2025 will be allowed to the extent that:
a) The Survey Report should be implemented.
b) That if the Defendants are found to have encroached upon the Plaintiffs’ portion, they should voluntarily vacate within 3 months of this ruling.
c) Failure forcible eviction to be undertaken.
d) Costs of the applications to the Plaintiffs.
Dated, signed, and electronically delivered in Nyeri on this 30th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Wafula for the Plaintiffs
Mr. Piemo for the Defendants
Kendi: Court Assistant
a) The Court be pleased to issue a temporary stay of execution of the decree adopted vide consent dated 12th day of June, 2025.
b) The Court be pleased to set aside or vary the consent judgment dated the 12th day of June, 2025, and the subsequent decree dated the same date, recorded in court between the Plaintiff and Defendant Advocates on the 12th day of June, 2025, herein, and all consequential Orders pending the hearing and determination of the suit.
c) The Court be pleased to issue orders directing a retrial or a fresh hearing of the suit herein, on the basis that the consent recorded herein and adopted as a court judgment was made without the knowledge or authority of the defendants themselves, and that their views were not considered by their Advocate.
d) The Court be pleased to order that the file be reopened for hearing and determination on the merits.
e) the Court be pleased to issue temporary orders on the Status Quo, granting the applicant herein a stay and occupation of the disputed land Kilifi/Mtondia/3827, pending the hearing and determination of this application and the subsequent hearing of the main suit.
f) The costs of this Application are to be provided for.
2. The 2nd application is the Plaintiffs’ application dated 5th September, 2025, seeking that:
a) The Plaintiff/Decree-Holder be granted eviction Orders in terms of the Judgment of this Court entered on 12th June, 2025, and the Court Decree emanating from the said Judgment, issued by this Court on 12th June, 2025.
b) The Kilifi County Police Commander provides security for the execution of the Court Decree issued by this Court on 12th June, 2025.
c) Costs of this application should be provided for.
3. The two applications were canvassed through written submissions.
4. Based on the parties' submissions and the materials before me, the issues I frame for the Court's decision are whether to stay execution, whether to set aside the consent orders entered by the parties herein (1st application), whether to issue eviction orders arising from the parties' consent (2nd application), and who should bear the costs of the applications.
5. On the Defendants' application dated September 16, 2025, for a stay of execution, setting aside, and review of the consent orders being executed, they contend that when the orders of joint survey were issued, the survey was conducted. A report was issued, resulting in a decree being extracted for execution. Mr. Kinaro, their former advocate, had not given them the appropriate legal advice. They did not consent to the adoption of the joint Survey Report conducted and were therefore aggrieved by its adoption. That is why they have instructed another lawyer to set aside that consent.
6. Conversely, the Plaintiffs/Respondents contend that the joint survey was conducted voluntarily. When the report was circulated among the parties, Mr. Kinaro consented to adopt the surveyor's report, and his clients concurred fully. The sole point of disagreement related to the litigation costs, which the parties mutually agreed to bear individually.
7. Having reviewed the decisions cited to me, on grounds to set aside consent judgment/ orders, particularly Board of Trustees National Social Security Fund v Micheal Mwalo [2015] KECA 782 (KLR), the Court of Appeal held as follows:
“There is a plethora of cases in the High Court and in this Court stating the law on the issue of setting aside of a consent judgment. Some of them were cited by counsel in this matter. It will suffice to refer to a few of these.
31. In Wasike v Wamboko, the High Court at Kakamega (Gicheru J, as he then was) held -
“1. A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting aside a contract, or if certain conditions remain to be fulfilled which are not carried out.
2. The Civil Procedure Act (Cap 21) Section 67 (2) is not an absolute bar to challenging a decree passed with the consent of the parties where a party seeks to prove that the decree is invalid ab initio and should be rescinded or that there exist circumstances to warrant varying the decree.
3. In this case, there were no grounds which would justify the setting aside of the consent judgment.
Appeal dismissed.”
32. The position is clearly set out in Setton on Judgments and Orders (7th Edn), Vol. 1, pg 124 as follows-
“Prima Facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them...
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.”
33. This passage was followed by the court of appeal in Brooke Bond Liebig Ltd V Mallya [1975] EA 266 at 269, in which 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.”
34. In Kenya Commercial Bank Ltd V. Benjoh Amalgamated Ltd, Githinji J (as he then was) considered the circumstances under which a consent Judgment can be set aside and referred to and relied on the decision in Hirani V. Kassam [1952] 19 EACA 131 in which the above passage from Seton on Judgments and Orders was approved. (The decision by Githinji J was reversed by this court on a different point.
“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 v Kenya Commercial Bank Limited Civ Apps 28 of 1982 and 69 of 1983. In Purcell v 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.”
35. In Kenya Commercial Bank Ltd V Specialised Engineering Co. Ltd [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.
8. There is no material before this Court showing that the former advocate for the Defendants/Applicants was not acting at his client’s behest, warranting the setting aside or review of the existing consent orders. Therefore, that application lacks merit and is hereby dismissed with costs.
9. On the 2nd application for eviction, after the survey report, the matter was compromised by allowing prayer a, b, and c of the plaint, which stated that the Defendants had no right to occupy or construct on the suit property; a mandatory injunction compelling the Defendants to demolish structures standing on the suit property; a permanent injunction to restrain the Defendants from interfering with the Plaintiffs’ peaceful occupation of the suit property; and each party was to bear its own costs.
10. Once consented to, the orders will follow and be enforced in accordance with the agreed-upon survey report, so that if the Defendants are found to have encroached upon the Plaintiffs’ portion, they should comply by removing any structures that could be offending and contrary to the joint Survey Report.
11. Consequently, in accordance with the consent orders in place, the application dated 5th September 2025 will be allowed to the extent that:
a) The Survey Report should be implemented.
b) That if the Defendants are found to have encroached upon the Plaintiffs’ portion, they should voluntarily vacate within 3 months of this ruling.
c) Failure forcible eviction to be undertaken.
d) Costs of the applications to the Plaintiffs.
Dated, signed, and electronically delivered in Nyeri on this 30th day of April, 2026.
E. K. MAKORI
JUDGE
In the presence of:
Mr. Wafula for the Plaintiffs
Mr. Piemo for the Defendants
Kendi: Court Assistant