Hayer Bishan & Sons Ltd v Agwena (Environment and Land Appeal E002 of 2025) [2025] KEELC 4952 (KLR)
The bottom line
#The High Court in Kisumu ruled that a consent order must be varied by the trial court that recorded it, not the appeal court, and dismissed the company's extension request.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the High Court sitting on appeal has jurisdiction to enlarge time for compliance with, or vary, a consent order recorded in the trial court
- 2.Whether the application brought under Order 42 Rule 6, which deals with stay of execution pending appeal, was the proper vehicle for the relief sought
- 3.Whether the application demonstrated grounds for varying a consent order
Key legal issues
#Jurisdiction of the appeal court over a consent order recorded in the trial court
The court lacks jurisdiction to review or vary the consent order because the appeal is against the judgment, not the consent order, and section 78 powers apply only to the subject matter of the appeal.
The court noted the appeal arises from the judgment of 13th January 2025, not the consent order of 16th April 2025. Section 78 powers (determining a case finally, remanding, framing issues, taking additional evidence, ordering a new trial) are exercisable only in respect of the subject matter of the appeal. The application was in substance a request to review the consent order recorded in the trial court file, which the appeal court was not being asked to exercise any of those powers to do.
Wrong statutory foundation for the application
Order 42 Rule 6 governs stay of execution pending appeal and was not the appropriate provision for enlarging time to comply with a consent order.
The motion was brought under Order 42 Rule 6 of the Civil Procedure Rules, but that provision deals with stay of execution pending appeal, not variation of a consent order or enlargement of time for compliance with one. The application therefore lacked a proper legal basis before the appellate court.
Merits of the application to vary/extend time under the consent order
The application was unmerited as it did not demonstrate grounds for varying a consent order; sickness of a director was argued but the consent had not been challenged.
The respondent argued that the consent was recorded after negotiations, provided for execution on default, could only be reviewed by the trial court, and had not been challenged; further, the applicant being a limited company, the illness of its director should not halt its operations. The court agreed the application failed to demonstrate grounds for varying a consent order and dismissed it.
Legal principles established
#- The powers of an appellate court under section 78 of the Civil Procedure Act are exercisable only in respect of the subject matter of the appeal, and a consent order not under appeal cannot be reviewed on that appeal.
- A party seeking to vary a consent order must approach the court that recorded the consent, and the appellate court is not the proper forum absent an explanation for not filing there.
Court orders
#- 1.The Notice of Motion dated 26th June 2025 is dismissed
- 2.Costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu
- MCELC/E017/2023
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Relief refused
#Enlargement/extension of time by a further 120 days within which to deposit the decretal sums as per the consent of 16th April 2025
The application was improperly before the appeal court since the consent order is not the subject of the appeal, and it failed to demonstrate grounds for varying a consent order
Costs
Costs to the Respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The court finds that that application is not only improperly before this court but also unmerited as it does not demonstrate the grounds for varying a consent order.
These powers are applicable and to be exercisable in respect of the subject matter of the appeal. In the present case, the consent order is not the subject of the appeal.
No explanation has been given why the application was not filed before the trial court.
The application is dismissed. Costs to the Respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hayer Bishan & Sons Ltd v Agwena (Environment and Land Appeal E002 of 2025) [2025] KEELC 4952 (KLR)", Case Analysis (2025). Appeal number not stated in the ruling (arising from MCELC/E017/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4952/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.