Beatrice Wambui Kiarie, Margaret Wanjiru Nzioka & Ruth Kariti Kahia v Tabitha Wanjiku Ng’ang’a, Reuben Kamau Muiruri, Philip Waweru Kuria, John Muchuku Kuria, Beatrice Wambui Ng’ang’a, Lucy Wabai Kuria, Josephat Ndungu Kuria, Stephen Mwang Kuria, Jeniffer Wagio Ng’ang’a (sued as the administrator of Estate of Denis Ng’ang’a Kuria & Esther Watiri Gitau (sued as the administrator of the Estate of Joseph Gitau Kuria) [2017] KEELC 173 (KLR)

REPUBLIC OF KENYA

IN THE LAND AND ENVIRONMENT COURT AT NYAHURURU

CASE NO.265 OF 2017

BEATRICE WAMBUI KIARIE.................................1st PLAINTIFF/APPLICANT

MARGARET WANJIRU NZIOKA.........................2nd PLAINTIFF/APPLICANT

RUTH KARITI KAHIA............................................3rd PLAINTIFF/APPLICANT

-V E R S U S-

TABITHA WANJIKU NG’ANG’A....................1st DEFENDANT/RESPONDENT

REUBEN KAMAU MUIRURI.........................2nd DEFENDANT/RESPONDENT

PHILIP WAWERU KURIA..............................3rd DEFENDANT/RESPONDENT

JOHN MUCHUKU KURIA..............................4th DEFENDANT/RESPONDENT

BEATRICE WAMBUI NG’ANG’A..................5th DEFENDANT/RESPONDENT

LUCY WABAI KURIA......................................6th DEFENDANT/RESPONDENT

JOSEPHAT NDUNGU KURIA........................7th DEFENDANT/RESPONDENT

STEPHEN MWANG KURIA...........................8th DEFENDANT/RESPONDENT

JENIFFER WAGIO NG’ANG’A (Sued asthe administrator.

of Estate of DENIS NG’ANG’A KURIA.........9th DEFENDANT/RESPONDENT

ESTHER WATIRI GITAU (Sued as the administrator of the

Estate of JOSEPH GITAU KURIA)..............10th DEFENDANT/RESPONDENT

RULING

On the 24th April 2017 the above captioned matter came before me for mention to take directions wherein M/s Chelagat Advocate held brief for M/s Mukira Advocate for the Plaintiffs/Applicants while the Defendants/Respondents was represented by Mr. Karanja Advocate.

M/s Chelagat informed the court that parties had entered into a consent to wit:

1. Have the application dated the 2nd September 2016 marked as compromised.

2. That parties take dates to confirm compliance.

The position was confirmed by Mr. Karanja, counsel for the defendant and the court went ahead to adopt the said consent giving parties 30 days to comply with order 11 of the Civil Procedure Rules. The matter was set down for the 29th May 2017 for mention to confirm compliance.

On the said date, M/s Mukira Advocate appeared before me orally submitted that the order issued on the 24th April 2017 compromising their application dated the 2nd September 2016 was vague and ambiguous as it did not contain the terms of the compromise. She then asked the court to set aside the said orders.

I have considered the oral application made by counsel for the plaintiffs to set aside the orders issued on the 24th April 2017 and the opposing response from the Defendants’ counsel therein.

In Hirani v. Kassam (1952), 19EACA 131, the court of Appeal quoted the following passage from Seton on Judgments and Orders, 7th edition, Vol.1 p.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...... and cannot be varied or discharged unless obtained by fraud or collusion, or by an agreement contrary to the policy of the court..... or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement."

Be as it may, at this juncture, I do not wish to go into depth of the oral application submitted.

I do hereby direct the Plaintiffs/Applicants to file and serve their formal application, to set aside the consent order made on the 24th April 2017, within the next 14 days,

Dated and delivered at Nyahururu this 31st day of May 2017.

M.C. OUNDO

JUDGE OF ELC NYAHURURU