' 1. The interested party, Ambassadeur Investment (K) Limited, filed a notice of motion application dated 26/1/25 seeking the following orders:-
“ 1.Spent.
2.THAT this Honourable Court be pleased to review and/or vary Order No.5 of the Consent Order issued on 15th January 2025 to read as follows:-
“That an equal sum to any sums paid to the firm of Gitobu Imanyara & Co.Advocates be paid to the firm of Muchemi & Co.Advocates on behalf of the Interested Party.”
3. THAT the costs of this application be provided for.”
2. The application was premised on the grounds that a consent dated 20/8/24 had been adopted by the court and issued as a consent order on 15/1/25 directing that an equal sum of the payments made to Gitobu Imanyara & Co. Advocates are paid to Muchemi & Co. Advocates towards settlement of costs awarded in Misc. Civil Suit no. 61 of 2017, Swaleh Mwangi & Co. Advocates v John Kaguma & others. The interested party sought variation of that order so that the funds be directed to Muchemi & Co. Advocates on its behalf, contending it had the right to determine the use of its funds, that suit no. 61 of 2017 was unrelated to the present matter, and that no prejudice would be occasioned to the advocate or respondents if the application was allowed.
3. In support, John Kaguma Maina, a director of the interested party duly authorised by his co-directors, swore an affidavit on 27/1/25 reiterating the above grounds. He annexed the consent dated 20/8/24 and the certificate of taxation dated 24/1/24, and averred that the application had been brought without undue delay, that the interested party retained discretion over its funds, and that the variation sought was in the interest of justice.
4. Mwangi Gathuri, an Advocate and Senior Partner at Swaleh, Mwangi & Co. Advocates swore a replying affidavit in opposition to the instant application.
5. He stated that his firm, though not originally party to the suit, sought joinder as an interested party to enforce compliance with a consent order issued on 20/8/2024 concerning release of monies owed to them but not yet received.
6. He explained that between 2011 and 2017, the proposed 2nd interested party represented John Kaguma Maina, Stanley Kariuki Maina and Charles Kanyuga Maina in succession and commercial suits relating to the estate of Samuel Maina Gatonga. The disputes concerned distribution of assets of the estate, including shares in the interested party, and involved the 1st–4th respondents. When funds held by the 1st garnishee were threatened with attachment, the interested party applied to be enjoined to protect its interests, which culminated in the Consent Order.
7. Although his firm was not directly involved in the negotiations, the directors of the interested party had agreed that an amount equal to that paid to the advocate be released to their advocates for transmission to the deponent’s firm to settle debts owed to them. He contended that this arrangement gave his firm a legitimate interest in the proceedings, similar to that of the interested party.
8. He argued that since the interested party itself sought joinder to protect funds it believed belonged to it, his firm was equally entitled to be joined to secure monies lawfully due to it under a valid court order. He urged the court to allow the application for joinder.
Analysis and determination
9. Both the interested party and the proposed interested party filed written submissions dated 16/5/2025 and 19/5/2025, respectively.
10. At the outset, I note that Swaleh, Mwangi & Co. Advocates opposed the instant application vide a replying affidavit sworn on 20/3/2025 by a partner in the firm. The said firm also filed an application dated 30/1/2025 seeking to be enjoined in this matter.
11. In the Supreme Court case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR, the court defined an interested party as one who has a stake in the proceedings but is not a direct party, and can only participate once formally joined by the court.
12. In the present case, the application to enjoin Swaleh, Mwangi & Co. Advocates has not been heard or determined. Until such joinder is granted, the firm remains a stranger to these proceedings and lacks the requisite locus standi to file pleadings. Any documents it has filed in opposition to the application are therefore irregular and are hereby expunged from the record.
13. Turning now to the merits, it is undisputed that the parties herein entered into a consent dated 20/8/2024, which was subsequently adopted by the court vide an order issued on 15/1/2025.
14. I have examined the consent order of 15/1/2025, which was produced as exhibit ‘JKM-1’ in the interested party’s supporting affidavit. Order 5 thereto states:-
“ That an equal sum to any sums paid to the firm of Gitobu Imanyara & Co. Advocates be paid to the firm of Muchemi & Co. Advocates towards settlement of the costs awarded to the Advocate in Miscellaneous Civil Suit No. 61/2017, Swaleh Mwangi & Co Advocates vs John Kaguma and others.”
15. The interested party now seeks to have order no.5 of the said order varied to read:
“ That an equal sum to any sums paid to the firm of Gitobu Imanyara & Co. Advocates be paid to the firm of Muchemi & Co. Advocates on behalf of the Interested Party .”
16. The Court of Appeal in Board of Trustees National Social Security Fund v Michael Mwalo [2015] eKLR, reaffirmed the principle that consent orders/judgments can only be interfered with where they were obtained by fraud, mistake, misrepresentation, or without proper authority.
17. Similarly, in Jaribu Credit Traders Limited v Fidelity Bank Limited & Another (Commercial Suit 647 of 2015) [2025] KEHC 5634, the court emphasized that consent orders are binding and can only be set aside in exceptional circumstances, that is, fraud, misrepresentation, mistake, or material non-disclosure.
18. It is therefore settled that a consent may only be varied and/or set aside on grounds that warrant the setting aside of a contract, that is, where fraud, mistake, misrepresentation, or lack of proper authority are demonstrated.
19. In the present case, the interested party based its application on the arguments that it has a right to determine how the funds belonging to it should be utilized and that Civil Suit No.61 of 2017: Swaleh Mwangi & Co. Advocates vs.John Kaguma and others has no relation whatsoever to the instant matter before this court. Further, the interested party argued that it has various ways of settling any sums due to any party.
20. In my view, the reasons above do not fall within the circumstances where the court may interfere with the terms of a consent. A consent agreement is binding on the parties and the court only varies and/or sets it aside sparingly under the strict instances highlighted in the authorities above.
21. Accordingly, I find the application before me devoid of merit and dismiss the same with costs to the respondents.
22. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
25TH SEPTEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Mwangi Gathuri.……….………..for the Advocate
Evance Ochieng ..………….…...... for the 2nd Respondent
Evance Ochieng h/b for Were..………….…..... for the 1st, 3rd & 4th Respondent
Njoroge ………………………….…….for Applicant
Musambate h/b for Muchemi…………….for the Interested Party
'
“ 1.Spent.
2.THAT this Honourable Court be pleased to review and/or vary Order No.5 of the Consent Order issued on 15th January 2025 to read as follows:-
“That an equal sum to any sums paid to the firm of Gitobu Imanyara & Co.Advocates be paid to the firm of Muchemi & Co.Advocates on behalf of the Interested Party.”
3. THAT the costs of this application be provided for.”
2. The application was premised on the grounds that a consent dated 20/8/24 had been adopted by the court and issued as a consent order on 15/1/25 directing that an equal sum of the payments made to Gitobu Imanyara & Co. Advocates are paid to Muchemi & Co. Advocates towards settlement of costs awarded in Misc. Civil Suit no. 61 of 2017, Swaleh Mwangi & Co. Advocates v John Kaguma & others. The interested party sought variation of that order so that the funds be directed to Muchemi & Co. Advocates on its behalf, contending it had the right to determine the use of its funds, that suit no. 61 of 2017 was unrelated to the present matter, and that no prejudice would be occasioned to the advocate or respondents if the application was allowed.
3. In support, John Kaguma Maina, a director of the interested party duly authorised by his co-directors, swore an affidavit on 27/1/25 reiterating the above grounds. He annexed the consent dated 20/8/24 and the certificate of taxation dated 24/1/24, and averred that the application had been brought without undue delay, that the interested party retained discretion over its funds, and that the variation sought was in the interest of justice.
4. Mwangi Gathuri, an Advocate and Senior Partner at Swaleh, Mwangi & Co. Advocates swore a replying affidavit in opposition to the instant application.
5. He stated that his firm, though not originally party to the suit, sought joinder as an interested party to enforce compliance with a consent order issued on 20/8/2024 concerning release of monies owed to them but not yet received.
6. He explained that between 2011 and 2017, the proposed 2nd interested party represented John Kaguma Maina, Stanley Kariuki Maina and Charles Kanyuga Maina in succession and commercial suits relating to the estate of Samuel Maina Gatonga. The disputes concerned distribution of assets of the estate, including shares in the interested party, and involved the 1st–4th respondents. When funds held by the 1st garnishee were threatened with attachment, the interested party applied to be enjoined to protect its interests, which culminated in the Consent Order.
7. Although his firm was not directly involved in the negotiations, the directors of the interested party had agreed that an amount equal to that paid to the advocate be released to their advocates for transmission to the deponent’s firm to settle debts owed to them. He contended that this arrangement gave his firm a legitimate interest in the proceedings, similar to that of the interested party.
8. He argued that since the interested party itself sought joinder to protect funds it believed belonged to it, his firm was equally entitled to be joined to secure monies lawfully due to it under a valid court order. He urged the court to allow the application for joinder.
Analysis and determination
9. Both the interested party and the proposed interested party filed written submissions dated 16/5/2025 and 19/5/2025, respectively.
10. At the outset, I note that Swaleh, Mwangi & Co. Advocates opposed the instant application vide a replying affidavit sworn on 20/3/2025 by a partner in the firm. The said firm also filed an application dated 30/1/2025 seeking to be enjoined in this matter.
11. In the Supreme Court case of Trusted Society of Human Rights Alliance v Mumo Matemu & 5 Others [2014] eKLR, the court defined an interested party as one who has a stake in the proceedings but is not a direct party, and can only participate once formally joined by the court.
12. In the present case, the application to enjoin Swaleh, Mwangi & Co. Advocates has not been heard or determined. Until such joinder is granted, the firm remains a stranger to these proceedings and lacks the requisite locus standi to file pleadings. Any documents it has filed in opposition to the application are therefore irregular and are hereby expunged from the record.
13. Turning now to the merits, it is undisputed that the parties herein entered into a consent dated 20/8/2024, which was subsequently adopted by the court vide an order issued on 15/1/2025.
14. I have examined the consent order of 15/1/2025, which was produced as exhibit ‘JKM-1’ in the interested party’s supporting affidavit. Order 5 thereto states:-
“ That an equal sum to any sums paid to the firm of Gitobu Imanyara & Co. Advocates be paid to the firm of Muchemi & Co. Advocates towards settlement of the costs awarded to the Advocate in Miscellaneous Civil Suit No. 61/2017, Swaleh Mwangi & Co Advocates vs John Kaguma and others.”
15. The interested party now seeks to have order no.5 of the said order varied to read:
“ That an equal sum to any sums paid to the firm of Gitobu Imanyara & Co. Advocates be paid to the firm of Muchemi & Co. Advocates on behalf of the Interested Party .”
16. The Court of Appeal in Board of Trustees National Social Security Fund v Michael Mwalo [2015] eKLR, reaffirmed the principle that consent orders/judgments can only be interfered with where they were obtained by fraud, mistake, misrepresentation, or without proper authority.
17. Similarly, in Jaribu Credit Traders Limited v Fidelity Bank Limited & Another (Commercial Suit 647 of 2015) [2025] KEHC 5634, the court emphasized that consent orders are binding and can only be set aside in exceptional circumstances, that is, fraud, misrepresentation, mistake, or material non-disclosure.
18. It is therefore settled that a consent may only be varied and/or set aside on grounds that warrant the setting aside of a contract, that is, where fraud, mistake, misrepresentation, or lack of proper authority are demonstrated.
19. In the present case, the interested party based its application on the arguments that it has a right to determine how the funds belonging to it should be utilized and that Civil Suit No.61 of 2017: Swaleh Mwangi & Co. Advocates vs.John Kaguma and others has no relation whatsoever to the instant matter before this court. Further, the interested party argued that it has various ways of settling any sums due to any party.
20. In my view, the reasons above do not fall within the circumstances where the court may interfere with the terms of a consent. A consent agreement is binding on the parties and the court only varies and/or sets it aside sparingly under the strict instances highlighted in the authorities above.
21. Accordingly, I find the application before me devoid of merit and dismiss the same with costs to the respondents.
22. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
25TH SEPTEMBER 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Mwangi Gathuri.……….………..for the Advocate
Evance Ochieng ..………….…...... for the 2nd Respondent
Evance Ochieng h/b for Were..………….…..... for the 1st, 3rd & 4th Respondent
Njoroge ………………………….…….for Applicant
Musambate h/b for Muchemi…………….for the Interested Party
'