Millenium Management Limited v Mbwalame & 10 others (Environment and Land Case 94 of 2016) [2025] KEELC 5899 (KLR) (31 July 2025) (Ruling)
Neutral citation:
[2025] KEELC 5899 (KLR)
Republic of Kenya
Environment and Land Case 94 of 2016
EK Makori, J
July 31, 2025
Between
Millenium Management Limited
Plaintiff
and
Misi Ali Mbwalame & 10 others
Defendant
Ruling
1.The Plaintiff’s Notice of Motion application dated February 28, 2025, brought pursuant to Sections 1A, 1B, 3A, 65(e) of the Civil Procedure Act (Cap 21) and Order 10 Rule 11 of the Civil Procedure Rules, seeks the following orders:i.Spent.ii.Spent.iii.The Consent Order(s) and decree arising from the alleged consent agreement dictated by Learned Counsel Mr. Mwadilo on December 7, 2021, as outlined in the Consent Order issued at Malindi on December 14, 2021, are hereby set aside in their entirety.iv.The suit is reopened, the same be listed for hearing, and the court gives or considers such other or further directions/orders as it shall deem just and expedient in the circumstances.v.The costs of this application are provided.
2.The application is based on the grounds outlined in the Notice of Motion and supported by an affidavit sworn on the same date by Epainito Apono Okoyo, who is said to be the Plaintiff’s manager. He stated that he was duly authorized to swear the affidavit on behalf of the Plaintiff/Applicant pursuant to a company resolution. The Plaintiff/Applicant is described as a limited liability company properly registered in the Republic of Kenya and the registered owner of all that parcel of land known as LR No. 504/4 Kilifi (Title No. CR. 14214251), which is the subject of the suit.
3.The deponent stated that the Plaintiff had filed a lawsuit against the Defendants jointly and individually, seeking, among other things, eviction orders and mesne profits for alleged unlawful occupation and trespass on the suit land. The Plaintiff was represented by the firm of M/s Aoko Githara and Company Advocates, while the Defendants were represented by Mr. Mwadilo, instructed by M/s Khaminwa and Khaminwa Advocates.
4.The deponent further stated that on June 29, 2024, the then shareholders of Millennium Management Limited entered into a Share Sale and Purchase Agreement with Group Five Investments Limited, a limited liability company incorporated in Kenya, through which 100% of the issued and paid-up share capital of Millennium Management Limited was sold and transferred. Among the capital assets transferred as part of that transaction was the suit property, LR No. 504/4 Kilifi.
5.At the time of entering into the said agreement, the suit was already pending in court. However, the vendors allegedly failed to disclose to the purchaser that on December 7, 2021, counsel for the Defendants had unilaterally dictated to the court what purported to be a consent, in the absence of counsel for the Plaintiff. The consent order, which was subsequently issued on January 14, 2021, allegedly authorized the excision and transfer of portions of the suit land to Kibarani Ward Progressive Association and Korosho Primary and Secondary Schools—entities not involved in the suit—in exchange for a consideration of Kshs. 30,000,000.
6.The deponent argued that the consent was entered into without the knowledge or involvement of the Plaintiff or its attorneys, and that it effectively diminished the size and value of the suit property. He claimed the consent was obtained through unilateral action, misrepresentation, fraud, collusion with third parties, and in violation of public policy.
7.It was further deposed that, at the time Group Five Investments Limited acquired all issued shares in Millennium Management Limited, the purchase price was based on the full, undiminished value of the suit property, which had since been adversely affected by the impugned consent order. The deponent argued that the consent order effectively deprived the Plaintiff of its proprietary rights without due process, violating its right to property under Article 40 of the Constitution.
8.He further asserted that the third parties to whom portions of the land were allocated under the impugned consent were not parties to the suit and should have been joined to the proceedings to be heard in accordance with Article 50 of the Constitution. The deponent added that unless the said consent order was set aside, the Plaintiff would suffer irreparable loss through the subdivision and transfer of the suit property to unknown persons. The deponent also indicated that the application had been brought at the earliest opportunity, noting that there was a need to obtain leave for current counsel to come on record. It was the deponent’s position that the grant of the orders sought would serve the interests of justice and further the overriding objectives of the court.
9.In response to the application, two replying affidavits were filed. The first was sworn by Katana Kazungu Kitsao, the 4th Defendant, on April 28, 2025, who deposed that he was duly authorized to swear the affidavit on behalf of all the Defendants. He confirmed that a consent had been signed between the Defendants’ advocates, M/s Khaminwa and Khaminwa Advocates, and the Plaintiff’s then advocates, M/s Aoko Githara and Company Advocates. A copy of the said consent, dated and filed on May 17, 2021, was annexed.
10.According to the 4th Defendant, the consent fully resolved the case, with paragraphs 1 and 2 stating that the Defendants, through their umbrella organization Kibarani Ward Progressive Association (KIWAPA), would buy the property from the Plaintiff for a consideration of Kshs. 30,000,000.
11.He further stated that KIWAPA was an entity created by the Defendants, a fact well known to the court and the parties since the beginning of the case. To support this claim, he referred to the Defendants’ submissions dated July 19, 2016, and a Replying Affidavit dated May 10, 2016, both of which he attached.
12.The deponent stated that, to date, the Defendants have paid the Plaintiff over Kshs. 5,000,000 in accordance with the said consent and attached copies of acknowledgment slips issued by the Plaintiff as proof of receipt. The deponent noted that the new shareholder, Group Five Investments Limited, acquired the Plaintiff on June 26, 2024, and observed that the new shareholder claimed the Plaintiff’s former shareholders had failed to disclose the consent recorded on December 7, 2021, which had settled the suit.
13.He added that the Plaintiff had not produced any affidavit or statement from the former shareholders disputing the validity or regularity of the consent. Consequently, he asserted that the allegations of misrepresentation, fraud, collusion, or unilateral conduct by the Defendants were unsubstantiated. The deponent emphasized that the consent in question was in writing, duly signed by both parties, had been adopted by the court, and had remained unchallenged for over three years.
14.Lastly, the deponent stated that any grievances the Plaintiff had regarding the Share Purchase Agreement between Group Five Investments Limited and the former shareholders are matters of commercial transactions and should be addressed in the commercial division, rather than by attempting to set aside a valid consent order entered into in these proceedings.
15.The second replying affidavit was sworn on 30th April 2025 by Mr. Kizambo Alfred Mwadilo, an advocate of the High Court of Kenya practicing with M/s Khaminwa & Khaminwa Advocates. He deponed that upon receiving instructions from the Defendants regarding terms of a consent, he prepared a draft which was forwarded to the Plaintiff’s advocates. The Plaintiff’s attorneys confirmed receiving similar instructions from their client and proceeded to sign the consent dated May 17, 2021. The said consent was later adopted as a court order on December 17, 2021, and a consent order was issued on December 14, 2021.
16.The deponent noted that all referenced documents had already been attached to the earlier replying affidavit by Katana Kazungu Kitsao. He stated that the current application, filed four years after the consent was adopted and partly acted upon, was an afterthought. He also observed that the Plaintiff or its counsel had previously not objected to the recent change in shareholding and legal representation.
17.Mr. Mwadilo argued that any dispute about the non-disclosure of the consent to the Plaintiff’s new shareholders is a commercial issue between the Plaintiff and its former shareholders. He denied any wrongdoing or misconduct in preparing or submitting the consent, stating that no evidence has been provided to support such claims.
18.The application was canvassed by way of written submissions.
The Plaintiff’s submissions
19.Counsel for the Plaintiff, Mr. Onsongo, submitted that a consent has the character of a contract and must satisfy all the essential elements thereof, including offer, acceptance, intention to create legal relations, and consensus ad idem. Reliance was placed on Garvey v Richards [2011] JMCA 16 and RTS Flexible Systems Ltd v Moikerei Alois Muller GmbH and Co KG [2010] UKSC 14. Further citing the case of Housing Finance Co. of Kenya Limited v Gilbert Kibe Njuguna Nbi HCCC No. 1601 of 1999, counsel submitted that the impugned consent lacked mutuality and was not inter partes, having been recorded on a mention date without the participation of the Plaintiff or its counsel.
20.Counsel cited Flora N. Wasike v Destimo Wamboko [1988] KLR, Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266, and Hirani v Kassam [1952] 19 EACA 131 to support the proposition that a consent may be set aside if procured through fraud, collusion, misapprehension, or in the absence of sufficient material facts. Counsel emphasized that the consent did not meet the legal threshold for enforceability and violated the Plaintiff’s constitutional right to a fair hearing under Article 50(1) of the Constitution.
21.Lastly, the Plaintiff argued that the court lacked jurisdiction to issue substantive orders on a mention date when both parties were absent. They cited several authorities, including Central Bank of Kenya v Uhuru Highway Development Ltd and 3 Others Civil Appeal No. 75 of 1998, Rahab Wanjiru Evans v Esso (K) Ltd Civil Appeal No. 13 of 1995 [1995-1998] 1 EA 332, Attorney General v Simon Quiggrey Ogila [2000] eKLR, Peter Nzioki and another v Aron Kuvuva Kitusa Civil Appeal No. 54 of 1982 [1984], and Kenya Commercial Bank v N.J.B Hawala Civil Application No. 240 of 1997, to support this position.
22.In conclusion, the Plaintiff urged the court to allow the application, set aside the consent order and all consequential orders, and fix the matter for further directions.
The Defendants’ submissions
23.The Defendants’ counsel, Mr. Mwadilo, argued that the only reason for requesting to set aside the consent was the alleged lack of awareness by the new shareholders.
24.Counsel relied on Housing Finance Co. of Kenya Ltd v Sharok Hirji [2021] eKLR and Flora Wasike v Destimo Wamboko [1988] eKLR to argue that a consent may only be set aside on grounds such as fraud, collusion, or material misapprehension, none of which had been established. He contended that the consent was validly executed and adopted, and that the Plaintiff had not presented any affidavit from its former shareholders or advocates denying authority or instructions.
25.Mr. Mwadilo further argued that the Plaintiff, as a legal entity, remains bound by the actions and decisions of its former shareholders and directors. He contended that the current shareholders cannot disown a binding consent that was voluntarily entered into and partly performed. In conclusion, the counsel urged the court to dismiss the application with costs.
Analysis And Determination
26.I have considered the Plaintiff’s application dated February 28, 2025, the affidavits in support and opposition, the parties’ written submissions, and the authorities cited. In my view, I identify the following issues that need to be determined:i.Whether the consent recorded and adopted on 7th December 2021 and issued on 14th December 2021 should be set aside.ii.Whether the suit should be reopened and listed for hearing.iii.Who should bear the costs of the application?
27.It is well established that a consent judgment or order, entered into by the parties or their legal representatives, is binding unless it can be demonstrated that it was procured through fraud, collusion, error, or misrepresentation. In the case of SMN v ZMS and 3 others [2017] eKLR, the Court of Appeal, when considering the matter of rescinding a consent judgment, articulated the following:19.In Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485, Harris, J correctly held, inter alia, that -
28.In this case, the record shows that a consent dated May 17, 2021, was filed and later adopted as a court order on December 7, 2021. The Plaintiff’s application to set aside that consent is mainly based on the claim that its current shareholders were unaware of the consent when they acquired the company. It is also alleged that the consent was obtained fraudulently, without authority, and in the presence of counsel for the Plaintiff. The circumstances under which a consent order can be set aside are well known and do not need to be repeated here.
29.I have thoroughly reviewed the impugned consent. It bears the signatures of counsel for both parties. It has not been alleged, let alone proven, that the signature of the Plaintiff’s then-lawyer was forged or affixed without authority. The Plaintiff’s only objection is that its counsel was absent when the consent was recorded in court. In my view, that argument, on its own, lacks merit. The subsequent approval of the consent by the court does not negate the fact that it was already executed adequately by the legal representatives of both parties.
30.Even more compelling is the Plaintiff’s conduct afterward. For nearly four years, the Plaintiff, through its previous management, accepted partial performance of the agreement's terms, including receiving over Kshs—5,000,000 from the Defendants. No objection was raised, no steps were taken to disown the agreement, and the consent remained uncontested throughout. The law does not allow a party to benefit from a consent order and then try to disown it at their convenience. Having acquiesced for a significant period and benefited from partial performance, the Plaintiff cannot now justifiably seek to annul the consent.
31.Furthermore, the simple lack of knowledge among incoming shareholders does not, on its own, provide a legal basis to overturn a consent that authorized individuals have properly given. To decide otherwise would undermine the finality of judgments and leave court orders vulnerable to constant challenges with each internal corporate restructuring.
32.In the foregoing, I find no grounds to unsettle the consent orders issued on December 14, 2021. The outcome is that the application dated February 28, 2025, lacks merit. It is dismissed with costs.
DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 31ST DAY OF JULY 2025.E. K. MAKORIJUDGEIn the Presence of:-Mr. Onsongo, representing the ApplicantsMr. Mwadilo, representing the RespondentsHappy: Court Assistant