' Background and introduction
1. By an application dated 1st July 2025 the 2nd, 3rd, 4th and 5th plaintiffs (applicants) seek an extension of time to comply with the terms of a consent order dated 30th July 2024, and to halt the imminent auction of Apartment A07, B07, C07, on LR. NO. 1870/IП/184, Apartment B06 and A 12 on LR NO. 1870/IV/64, Land Reference NO. 209/9493; and Land Reference No. 1870/III/270 (the suit properties).
2. The applicants had instituted the present suit on 15th September 2023, seeking among other reliefs, an extension of time to redeem the suit properties charged as security for banking facilities, pursuant to Sections 90, 104, and 105 of the Land Act, 2012.
3. Following negotiations, the parties executed a consent agreement in which the 1st respondent accepted a sum of Kshs.696,000,000/= as full and final settlement of the facilities advanced to the 1st applicant. The applicants contend that they had since made substantial payments toward this amount. They blame their inability to comply with the consent on Kenya Rural Roads Authority (KERRA), confirming that the banking facilities in question, totaling Kshs.766,391,876/=, were granted in 2017 to finance three contracts awarded by KERRA.
4. It is the applicants’ case that KERRA defaulted on payments due under certified Interim Payment Certificates leading to arbitration proceedings and an award in favour of the applicants. They further confirm that KERRA has not disputed the award and has begun processing payments. The applicants had equally secured a final arbitral award on 8th January 2024 and an additional award on 4th November 2024, totaling Kshs.2,486,440,095.53/= plus interest and costs.
5. The applicants contend that they have taken steps to enforce the arbitral award by filing suit for its adoption as a judgment of the court. They confirm that KERRA has already made partial payments directly to the 1st respondent and has floated a bond, intended to clear outstanding contractor obligations. It is the applicants’ case that KERRA has expressly committed to settling the remaining balance due under the facility within 120 days, which undertaking forms a basis for their request to suspend the auction and extend the time for compliance with the consent judgment.
6. According to the applicants, the 1st and 2nd respondents had issued them with Notifications of Sale demanding a sum of Kshs.820,514,787/=, which they assert exceeds the amount agreed upon in the consent judgment. Following this, the respondents proceeded to advertise the public auction of the suit properties, with the sale scheduled to take place on 13th June 2025. The applicants view this action as a breach of the consent terms and a premature attempt to realize the securities, notwithstanding their substantial payments and ongoing efforts to settle the balance.
7. The 2nd respondent opposes the application through grounds of opposition dated 24th July 2025. It is their position that the Court is functus officio, having already adopted the consent dated 30th July 2024 as an order of the Court. They argue that the said consent can only be varied or set aside either by a subsequent consent of the parties or upon proof of vitiating factors such as fraud, mistake, or misrepresentation. The respondent maintains that no such grounds have been demonstrated by the applicants. Both parties have filed their respective submissions, which I have carefully considered.
Analysis and Determination
8. The consent order entered into by the parties on 30th July 2024 was intended to settle the underlying dispute and is not disputed by either side. It effectively compromised the existing applications, including the applicants’ prayer for injunctive relief against the respondents. Once adopted as an order of the Court, the consent acquired the force of a binding judgment and became enforceable as such.
9. It is a well-established principle of law that a consent judgment is treated as a contract between the parties and is only impeachable on grounds that would vitiate a contract. The Court of Appeal in Board of Trustees National Social Security Fund V Michael Mwalo, [2015] eKLR aptly stated:
“A court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the police of the court.”
10. The terms of the consent of 30th July 2024 were clearly defined. For the avoidance of doubt, the parties agreed that:
a) Full and final settlement of Kenya Shillings 696,000,000.00 to be paid within 150 days from the date of execution of this consent
b) The Plaintiffs payment of Kenya Shillings Fifty Million (Kshs. 50,000,000.00) shall constitute part of the initial deposit payment of Kenya Shillings Sixty-Nine Million Six Hundred Thousand (Kshs. 69,600,000.00), representing 10% of Kenyа Shillings Six Hundred Ninety-Six Million (Kshs. 696,000,000.00).
c) The remainder of the deposit, as outlined in Clause 1(b), totaling Kenya Shillings Nineteen Million Six Hundred Thousand (Kshs. 19,600,000.00), shall be paid upon the execution of this consent. This payment will demonstrate commitment and provide proof of funds for the payment of the remaining balance.
d) The Plaintiffs further undertake ta pay the costs incurred by the Bank for the services of professional auctioneers, totaling Kenya Shillings One Hundred and Fifty-Three Thousand Seven Hundred and Forty (Kshs. 153.740.00), and legal fees incurred by the Bank in the sum of Kenya Shillings Five million (Kshs. 5,000,000.00) within 30-45 days from the execution of this consent.
e) In the event of default on 1(a) (c)and (1d), the 1st Defendant (Bank) shall be at liberty to exercise its statutory power of sale over all charged properties without any further recourse.
11. When parties enter into a contract or mutual understanding, they do so with the expectation that their consent, freely given and clearly expressed, will be honored. If such consent could be arbitrarily revoked or disregarded by either party, the entire framework of agreement collapses into uncertainty, becomes fragile and unpredictable, subject to the shifting whims or regrets of individuals. Consents must therefore be treated as sacrosanct, not merely as procedural formalities but as binding expressions of intent. This principle is deeply embedded in the established jurisprudence on this subject.
12. Turning back to the issue before me, the applicants have not established or substantiated any of the recognized legal grounds, namely fraud, misrepresentation, collusion, or mistake, that would warrant the setting aside of the consent order. In the absence of such grounds, the consent remains valid and binding upon the parties. Consequently, the Court lacks jurisdiction to interfere with or vary the terms of the agreement as prayed.
13. As regards the prayer for injunction, I align myself with the observation made by this Court in Premier Flour Mills Limited & 5 Others V Ecobank Kenya Limited & 2 Others, [2019] eKLR, where Okwany, J, when confronted with analogous circumstances, aptly stated:
“… I note that the application for injunction is one of the prayers that were sought in the applicants’ initial application dated 8th May 2017 that was compromised through the impugned consent order recorded on 12th May 2017. I find that the prayer for an injunction can therefore be said to be res judicata having been dealt with conclusively through the impugned consent order. In making a fresh application for injunction the applicant can be said to be reviving an application that was already compromised on certain agreed terms.”
I am guided by the decision in Uhuru Highway Development Ltd V Central Bank of Kenya & 2 Others, CA No. 36 of 1996 wherein the Court of Appeal stated as follows:
“There is not one case cited to show that an application in a suit once decided by courts of competent jurisdiction can be filed once again for rehearing. This shows only one intention on the part of the legislature. That is to say, there must be end to applications of similar nature: that is to say further, wider principles of res judicata apply to applications within the suit.”
14. I couldn’t have articulated the application before me more precisely. I find that the renewed prayer for injunction is res judicata and on this basis it must fail.
Disposition
15. Accordingly, the application dated 1st July 2025 lacks merit and it is dismissed with costs. It is so ordered.
'
1. By an application dated 1st July 2025 the 2nd, 3rd, 4th and 5th plaintiffs (applicants) seek an extension of time to comply with the terms of a consent order dated 30th July 2024, and to halt the imminent auction of Apartment A07, B07, C07, on LR. NO. 1870/IП/184, Apartment B06 and A 12 on LR NO. 1870/IV/64, Land Reference NO. 209/9493; and Land Reference No. 1870/III/270 (the suit properties).
2. The applicants had instituted the present suit on 15th September 2023, seeking among other reliefs, an extension of time to redeem the suit properties charged as security for banking facilities, pursuant to Sections 90, 104, and 105 of the Land Act, 2012.
3. Following negotiations, the parties executed a consent agreement in which the 1st respondent accepted a sum of Kshs.696,000,000/= as full and final settlement of the facilities advanced to the 1st applicant. The applicants contend that they had since made substantial payments toward this amount. They blame their inability to comply with the consent on Kenya Rural Roads Authority (KERRA), confirming that the banking facilities in question, totaling Kshs.766,391,876/=, were granted in 2017 to finance three contracts awarded by KERRA.
4. It is the applicants’ case that KERRA defaulted on payments due under certified Interim Payment Certificates leading to arbitration proceedings and an award in favour of the applicants. They further confirm that KERRA has not disputed the award and has begun processing payments. The applicants had equally secured a final arbitral award on 8th January 2024 and an additional award on 4th November 2024, totaling Kshs.2,486,440,095.53/= plus interest and costs.
5. The applicants contend that they have taken steps to enforce the arbitral award by filing suit for its adoption as a judgment of the court. They confirm that KERRA has already made partial payments directly to the 1st respondent and has floated a bond, intended to clear outstanding contractor obligations. It is the applicants’ case that KERRA has expressly committed to settling the remaining balance due under the facility within 120 days, which undertaking forms a basis for their request to suspend the auction and extend the time for compliance with the consent judgment.
6. According to the applicants, the 1st and 2nd respondents had issued them with Notifications of Sale demanding a sum of Kshs.820,514,787/=, which they assert exceeds the amount agreed upon in the consent judgment. Following this, the respondents proceeded to advertise the public auction of the suit properties, with the sale scheduled to take place on 13th June 2025. The applicants view this action as a breach of the consent terms and a premature attempt to realize the securities, notwithstanding their substantial payments and ongoing efforts to settle the balance.
7. The 2nd respondent opposes the application through grounds of opposition dated 24th July 2025. It is their position that the Court is functus officio, having already adopted the consent dated 30th July 2024 as an order of the Court. They argue that the said consent can only be varied or set aside either by a subsequent consent of the parties or upon proof of vitiating factors such as fraud, mistake, or misrepresentation. The respondent maintains that no such grounds have been demonstrated by the applicants. Both parties have filed their respective submissions, which I have carefully considered.
Analysis and Determination
8. The consent order entered into by the parties on 30th July 2024 was intended to settle the underlying dispute and is not disputed by either side. It effectively compromised the existing applications, including the applicants’ prayer for injunctive relief against the respondents. Once adopted as an order of the Court, the consent acquired the force of a binding judgment and became enforceable as such.
9. It is a well-established principle of law that a consent judgment is treated as a contract between the parties and is only impeachable on grounds that would vitiate a contract. The Court of Appeal in Board of Trustees National Social Security Fund V Michael Mwalo, [2015] eKLR aptly stated:
“A court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the police of the court.”
10. The terms of the consent of 30th July 2024 were clearly defined. For the avoidance of doubt, the parties agreed that:
a) Full and final settlement of Kenya Shillings 696,000,000.00 to be paid within 150 days from the date of execution of this consent
b) The Plaintiffs payment of Kenya Shillings Fifty Million (Kshs. 50,000,000.00) shall constitute part of the initial deposit payment of Kenya Shillings Sixty-Nine Million Six Hundred Thousand (Kshs. 69,600,000.00), representing 10% of Kenyа Shillings Six Hundred Ninety-Six Million (Kshs. 696,000,000.00).
c) The remainder of the deposit, as outlined in Clause 1(b), totaling Kenya Shillings Nineteen Million Six Hundred Thousand (Kshs. 19,600,000.00), shall be paid upon the execution of this consent. This payment will demonstrate commitment and provide proof of funds for the payment of the remaining balance.
d) The Plaintiffs further undertake ta pay the costs incurred by the Bank for the services of professional auctioneers, totaling Kenya Shillings One Hundred and Fifty-Three Thousand Seven Hundred and Forty (Kshs. 153.740.00), and legal fees incurred by the Bank in the sum of Kenya Shillings Five million (Kshs. 5,000,000.00) within 30-45 days from the execution of this consent.
e) In the event of default on 1(a) (c)and (1d), the 1st Defendant (Bank) shall be at liberty to exercise its statutory power of sale over all charged properties without any further recourse.
11. When parties enter into a contract or mutual understanding, they do so with the expectation that their consent, freely given and clearly expressed, will be honored. If such consent could be arbitrarily revoked or disregarded by either party, the entire framework of agreement collapses into uncertainty, becomes fragile and unpredictable, subject to the shifting whims or regrets of individuals. Consents must therefore be treated as sacrosanct, not merely as procedural formalities but as binding expressions of intent. This principle is deeply embedded in the established jurisprudence on this subject.
12. Turning back to the issue before me, the applicants have not established or substantiated any of the recognized legal grounds, namely fraud, misrepresentation, collusion, or mistake, that would warrant the setting aside of the consent order. In the absence of such grounds, the consent remains valid and binding upon the parties. Consequently, the Court lacks jurisdiction to interfere with or vary the terms of the agreement as prayed.
13. As regards the prayer for injunction, I align myself with the observation made by this Court in Premier Flour Mills Limited & 5 Others V Ecobank Kenya Limited & 2 Others, [2019] eKLR, where Okwany, J, when confronted with analogous circumstances, aptly stated:
“… I note that the application for injunction is one of the prayers that were sought in the applicants’ initial application dated 8th May 2017 that was compromised through the impugned consent order recorded on 12th May 2017. I find that the prayer for an injunction can therefore be said to be res judicata having been dealt with conclusively through the impugned consent order. In making a fresh application for injunction the applicant can be said to be reviving an application that was already compromised on certain agreed terms.”
I am guided by the decision in Uhuru Highway Development Ltd V Central Bank of Kenya & 2 Others, CA No. 36 of 1996 wherein the Court of Appeal stated as follows:
“There is not one case cited to show that an application in a suit once decided by courts of competent jurisdiction can be filed once again for rehearing. This shows only one intention on the part of the legislature. That is to say, there must be end to applications of similar nature: that is to say further, wider principles of res judicata apply to applications within the suit.”
14. I couldn’t have articulated the application before me more precisely. I find that the renewed prayer for injunction is res judicata and on this basis it must fail.
Disposition
15. Accordingly, the application dated 1st July 2025 lacks merit and it is dismissed with costs. It is so ordered.
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