1. The application before this Court is a Notice of Motion dated 6th may 2025, brought under Article 159 of the Constitution, Sections 1A, 1B & 3A of the Civil Procedure Act, and Order 51 Rule 1 of the Civil Procedure Rules. The Applicant seeks the following orders:
a) Spent
b) THAT this honorable court to be pleased to extend the time within which the applicant is to comply with the recorded consent dated 12th march, 2025 requiring deposit of decretal sum in the joint account of the advocates for the parties.
c) THAT this honorable court be pleased to grant the applicant an additional 45 days to comply with the order.
d) THAT the costs if application be in the cause.
2. The application is supported by the supporting affidavit of Joseph Momanyi GISEMBA, the Applicant herein, in the said affidavit, the applicant outlines the reasons as to why the prayers in the application should be allowed.
3. The application is opposed by the respondent vide a replying affidavit sworn on 13th may, 2025. in opposing to the application, the respondent contends that the application is an abuse of the court process and ought to be dismissed.
Background
4. On 12th March 2025, a consent order was recorded in court, in which the Applicant undertook to deposit the decretal amount in a joint interest-earning account operated by both parties’ advocates within 45 days. Due to what the Applicant describes as unforeseen financial challenges, he failed to comply within the stipulated time and now seeks an extension of 45 more days.
5. The application is supported by the affidavit of the Applicant and opposed through a Replying Affidavit sworn by the Respondent on 13th May 2025, arguing that the application is an attempt to frustrate the execution of the decree herein and that the applicant previously sought to be allowed to liquidate the decretal sum in monthly instalments of Kshs. 10,000/= which was dismissed .Counsel submitted that the application is untenable as it seeks to set aside theconsent dated 12,3. I25 yet it is trite law that a consent is a contract and can only be set aside as follows ;
a. by consent
b. If it is shown that it was entered into b y fraud or misrepresentation.
c. If it is illegal or against public policy .
6. The matter came up before this Court on 13th April 2025, and directions were issued that the application to be canvassed y way of written submissions.
Issues for Determination
7. I have carefully considered the application, the reply the submissions by both parties herein. The main issue for determination is:
a) Whether the Applicant has provided sufficient cause to warrant the extension of time to comply with the consent order dated 12th March 2025.
Analysis
b) On whether the Applicant has provided sufficient cause to warrant the extension of time to comply with the consent order dated 12th March 2025.
8. In the case of Kamau v Kinyua [2022] KEHC 12647 (KLR)it was held that ……’’ To recap, parties recorded a consent before court on May 22, 2018to the effect that the judgment of Limuru Magistrate’s court be stayed pending the determination of this appeal on condition that the appellant would within 21 days after decree was extracted, provide security bond.
The court cited the Court of Appeal decision in the case of Intercounties Importers and Exporters Limited vs. Telepostal Pension Scheme Trustees & 5 others (2019) eKLR where it was held :-“We have considered the application and the submissions of parties, and consider that the central issue for our consideration is whether the threshold requirements for setting aside the consent have been met. To do so, it will be necessary to consider whether the tests to be fulfilled have been satisfied.The principles that appertain to setting aside of a consent orders are well established in a line of cases including Brooke Bond Liebig Vs Mallya (1975) EA 266 where Mustafa Ag. VP stated thus;“The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all the material facts and there could not have been any mistake or misunderstanding. None of the factors which could give rise to the setting aside of a consent agreement existed.”And in the case of flora n. wasike vs destimo wamboko [1988] eKLR Hancox JA cited Setton on Judgments and orders (7th edition) vol 1 page 124, and reiterated that;“Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and 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 the consent was given without sufficient material facts, or in general for a reason which would enable a court set aside an agreement.”
9. It is thus clear that a consent order is a contract as it is binding on both parties . It is trite law that a contract can only be set aside on the same grounds as those of variation or setting aside a contract . A contract can be set aside by consent , if it is shown that it was entered into by fraud, mistake, collusion or if it was against public policy. The applicant cites harsh economic times as a ground for variation of the terms of the consent and this has been strenuously opposed by the respondent the consent which is not a ground to set a side a consent . This court has no jurisdiction to re-write the consent between the parties herein .
10. In the upshot I find that the application is devoid of merit proceed to dismiss the application with costs to the respondent .
I1. It is so ordered.
T.A ODERA
JUDGE
14.7.25
DATED, SIGNED AND DELIVERED AT KISII THIS 14th DAY OF JULY 2025 IN THE PRESENCE OF :
MISS NDEMO FOR THE APPLICANT
MR SOIRE FOR THE RESPONDENT
CA : KIPCHIRCHIR
a) Spent
b) THAT this honorable court to be pleased to extend the time within which the applicant is to comply with the recorded consent dated 12th march, 2025 requiring deposit of decretal sum in the joint account of the advocates for the parties.
c) THAT this honorable court be pleased to grant the applicant an additional 45 days to comply with the order.
d) THAT the costs if application be in the cause.
2. The application is supported by the supporting affidavit of Joseph Momanyi GISEMBA, the Applicant herein, in the said affidavit, the applicant outlines the reasons as to why the prayers in the application should be allowed.
3. The application is opposed by the respondent vide a replying affidavit sworn on 13th may, 2025. in opposing to the application, the respondent contends that the application is an abuse of the court process and ought to be dismissed.
Background
4. On 12th March 2025, a consent order was recorded in court, in which the Applicant undertook to deposit the decretal amount in a joint interest-earning account operated by both parties’ advocates within 45 days. Due to what the Applicant describes as unforeseen financial challenges, he failed to comply within the stipulated time and now seeks an extension of 45 more days.
5. The application is supported by the affidavit of the Applicant and opposed through a Replying Affidavit sworn by the Respondent on 13th May 2025, arguing that the application is an attempt to frustrate the execution of the decree herein and that the applicant previously sought to be allowed to liquidate the decretal sum in monthly instalments of Kshs. 10,000/= which was dismissed .Counsel submitted that the application is untenable as it seeks to set aside theconsent dated 12,3. I25 yet it is trite law that a consent is a contract and can only be set aside as follows ;
a. by consent
b. If it is shown that it was entered into b y fraud or misrepresentation.
c. If it is illegal or against public policy .
6. The matter came up before this Court on 13th April 2025, and directions were issued that the application to be canvassed y way of written submissions.
Issues for Determination
7. I have carefully considered the application, the reply the submissions by both parties herein. The main issue for determination is:
a) Whether the Applicant has provided sufficient cause to warrant the extension of time to comply with the consent order dated 12th March 2025.
Analysis
b) On whether the Applicant has provided sufficient cause to warrant the extension of time to comply with the consent order dated 12th March 2025.
8. In the case of Kamau v Kinyua [2022] KEHC 12647 (KLR)it was held that ……’’ To recap, parties recorded a consent before court on May 22, 2018to the effect that the judgment of Limuru Magistrate’s court be stayed pending the determination of this appeal on condition that the appellant would within 21 days after decree was extracted, provide security bond.
The court cited the Court of Appeal decision in the case of Intercounties Importers and Exporters Limited vs. Telepostal Pension Scheme Trustees & 5 others (2019) eKLR where it was held :-“We have considered the application and the submissions of parties, and consider that the central issue for our consideration is whether the threshold requirements for setting aside the consent have been met. To do so, it will be necessary to consider whether the tests to be fulfilled have been satisfied.The principles that appertain to setting aside of a consent orders are well established in a line of cases including Brooke Bond Liebig Vs Mallya (1975) EA 266 where Mustafa Ag. VP stated thus;“The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of all the material facts and there could not have been any mistake or misunderstanding. None of the factors which could give rise to the setting aside of a consent agreement existed.”And in the case of flora n. wasike vs destimo wamboko [1988] eKLR Hancox JA cited Setton on Judgments and orders (7th edition) vol 1 page 124, and reiterated that;“Any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and 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 the consent was given without sufficient material facts, or in general for a reason which would enable a court set aside an agreement.”
9. It is thus clear that a consent order is a contract as it is binding on both parties . It is trite law that a contract can only be set aside on the same grounds as those of variation or setting aside a contract . A contract can be set aside by consent , if it is shown that it was entered into by fraud, mistake, collusion or if it was against public policy. The applicant cites harsh economic times as a ground for variation of the terms of the consent and this has been strenuously opposed by the respondent the consent which is not a ground to set a side a consent . This court has no jurisdiction to re-write the consent between the parties herein .
10. In the upshot I find that the application is devoid of merit proceed to dismiss the application with costs to the respondent .
I1. It is so ordered.
T.A ODERA
JUDGE
14.7.25
DATED, SIGNED AND DELIVERED AT KISII THIS 14th DAY OF JULY 2025 IN THE PRESENCE OF :
MISS NDEMO FOR THE APPLICANT
MR SOIRE FOR THE RESPONDENT
CA : KIPCHIRCHIR