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ELCDismissedNot stated in judgment· [2025] KEELC 4520 (KLR)

Saronera Limited v Were & 2 others (Civil Case E321 of 2022) [2025] KEELC 4520 (KLR)

Environment and Land Court
16 June 2025
COChristine Ochieng
2,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff sued to recover Kshs.20 million being a refund of a deposit paid towards acquisition of the 1st Defendant's property LR No. 3734/252, the suit having been compromised by a consent recorded in 2023 under which the Defendants were to refund the deposit. The 2nd Defendant filed a Notice of Motion dated 19th November 2024 seeking to vary, review, set aside or stay execution of the consent, and to stay warrants of arrest issued against him in execution, pending payment of funds due to him from the County Government of Nairobi. He alleged misrepresentation, conflict of interest (the 3rd Defendant having acted as advocate), and material non-disclosure, and relied on the settled law on setting aside consent judgments and on stay under Order 42 Rule 6 of the Civil Procedure Rules. The Plaintiff opposed, showing that a prior stay application had been dismissed, that attachment had failed for want of traceable assets, and that warrants of arrest were properly issued. The court framed two issues: whether the consent should be set aside, and whether the warrants should be stayed. Applying the principle that a consent judgment has contractual effect and can only be set aside on grounds vitiating a contract, the court found no proved fraud, collusion or coercion, noting the consent had been partially performed with Kshs.12.5 million paid. On stay, the 2nd Defendant gave no indication when County payment would come and showed no prejudice. The application was dismissed with costs.

Key legal issues

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01

Whether the consent of 17th July 2023 should be set aside

Holding

The application to set aside the consent failed; the 2nd Defendant proved no fraud, collusion or coercion, and the consent had been partially performed

Reasoning

The court applied the settled principle that a consent judgment has contractual effect and can only be impeached on grounds vitiating a contract. The 2nd Defendant alleged misrepresentation and conflict of interest arising from the 3rd Defendant acting as advocate, but produced no proof of fraud, collusion or coercion. The consent had been partially enforced, with Kshs.12.5 million paid, leaving Kshs.7.5 million which the 2nd Defendant admitted owing.

p. 4
02

Whether warrants of arrest against the 2nd Defendant should be stayed pending payment by Nairobi City County

Holding

Stay refused; the 2nd Defendant failed to demonstrate substantial loss or the Order 42 Rule 6 conditions

Reasoning

The applicant gave no indication when the County payment would be received and did not show what prejudice he would suffer absent a stay. He must have known when executing the consent that he would have to settle the decretal sum, and nearly two years had elapsed since the consent was entered, so the application was not made without unreasonable delay.

p. 4

Legal principles established

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  • A consent judgment has contractual effect and can only be set aside on grounds which would justify setting a contract aside, such as fraud, collusion, illegality or mistake
  • Stay of execution under Order 42 Rule 6 requires satisfaction that substantial loss may result, application made without unreasonable delay, and security for due performance

Court orders

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  1. 1.The 2nd Defendant's Notice of Motion application dated 19th November 2024 is dismissed
  2. 2.Costs of the application awarded to the Plaintiff
Jurisdiction invoked
Original civil jurisdiction over the suit and the 2nd Defendant's Notice of Motion under the Civil Procedure Act and Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Saronera Limited v Were & 2 others (Civil Case E321 of 2022) [2025] KEELC 4520 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4520/eng@2025-06-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.