Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Notice of Motion dated 11.06.2026)

Kemama & another (Suing as Personal Representative of the Estate of Amadeo Raymond Kemama - Deceased) v Guangxi Hydroelectric Construction Bureau Kenya Ltd (Environment and Land Case E001 of 2024) [2026] KEELC 4323 (KLR)

High Court of Kenya (sitting at Meru)
29 June 2026
4,640 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

The High Court in Meru confirmed that once parties record a consent order in Kenya, it is binding and can only be undone by proving fraud, misrepresentation, mistake, or similar serious grounds.

What this practically means

#

Executive summary

#
The Plaintiffs/Applicants moved the court by Notice of Motion dated 11.06.2026 seeking review of a consent recorded on 24.03.2026 setting aside the default/exparte judgment delivered on 06.11.2025 after formal proof, and reinstatement of that judgment. They contended that counsel who held brief for the advocate on record lacked express instructions to enter the consent, contrary to paragraphs 22 and 24 of their replying affidavit of 23.03.2026 which, they said, allowed setting aside only if the decretal sum was deposited in an escrow account, and that counsel lacked knowledge of material facts. The Respondent opposed, arguing res judicata (an earlier oral application on 28.05.2026), absence of evidence of excess of instructions, and that consent orders may only be set aside on the grounds warranting rescission of a contract. The court framed three issues. First, the res judicata plea failed: the record showed no prior application to set aside the consent was ever entertained; the 28.05.2026 mention only resolved payment of thrown away costs. Second, on the merits, applying Wasike v Wamboko and Brooke Bond Liebig v Mallya, the court held the Applicants proved none of the circumscribed grounds (fraud, misrepresentation, deceit, mistake, illegality or public policy); the affidavit paragraphs showed amenable concession subject only to a condition, and counsel acted within implied authority; the allegations of ignorance of material facts were vague, unsubstantiated and insufficient. Third, on reliefs, the consent had been consummated - a statement of defence was on record and thrown away costs paid - so reinstating judgment would create an absurdity; inherent jurisdiction could not be used to expunge the defence where the law makes express provision and relief had not been pleaded. The application was dismissed with each party bearing own costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the subject application is barred by the doctrine of res judicata and by extension Section 7 of the Civil Procedure Act, Chapter 21, Laws of Kenya or otherwise
  2. 2.Whether the Applicants have met/satisfied the threshold for review of a consent order or otherwise
  3. 3.What reliefs ought to issue in the circumstances

Key legal issues

#
01

Res judicata

Holding

The plea failed because no previous application for setting aside or review of the consent was ever entertained by the court; the 28.05.2026 proceedings only concerned non-payment of thrown away costs

Reasoning

The court found as a matter of record that on 28.05.2026 counsel merely pointed out non-payment of thrown away costs, which was settled upon proof of payment. There were no arguments on setting aside the consent, so no former suit or issue was heard and finally determined, an essential ingredient of Section 7 res judicata.

p. 5
02

Want of express instructions / counsel acting in contravention of instructions

Holding

Rejected; paragraphs 22 and 24 of the replying affidavit showed the Applicants were amenable to setting aside, subject only to a condition (escrow deposit), and counsel acted within implied authority

Reasoning

The court read the referenced affidavit paragraphs as granting express authority to concede the setting aside application, with only a condition attached. It also held an advocate has implied authority to do what is reasonable and lawful, including affording the respondent a hearing under Article 50(1). Thus counsel did not act contrary to instructions.

p. 6
03

Lack of knowledge of material facts

Holding

Rejected; the Applicants bore the burden of proof and made only vague, omnibus, unsubstantiated allegations, and holding brief presupposes sufficient instruction on the facts

Reasoning

The court held that the counsel holding brief for Mr. Ombati was by that very fact sufficiently instructed and appraised of the facts. The Applicants failed to identify which material facts were unknown to the erstwhile advocate, and mere unawareness of material facts does not amount to misrepresentation or mistake sufficient to impugn a consent.

p. 7
04

Availability of reliefs

Holding

The reliefs were untenable because the consent had been consummated by filing of a defence and payment of thrown away costs, and no judgment can subsist alongside a standing statement of defence

Reasoning

The court found that allowing the application would produce an absurdity: an exparte judgment cannot coexist with a statement of defence lawfully filed pursuant to the consent. The defence could only be removed via relief never sought, and inherent jurisdiction could not cure a failure in pleadings.

p. 8

Legal principles established

#
  • A consent order or judgment can only be set aside on grounds similar to those warranting setting aside a contract: fraud, misrepresentation, deceit, mistake going to the root, or if immoral and contrary to public policy
  • An order made in the presence and with the consent of counsel is binding and cannot be varied or discharged unless obtained by fraud or collusion, by agreement contrary to policy of the court, or where consent was given without sufficient material facts
  • Inherent jurisdiction of the court cannot be invoked where there is a specific statutory provision to meet the case
  • A court can only grant a relief or prayer which has been expressly sought
  • The elements of res judicata under Section 7 of the Civil Procedure Act must all be satisfied conjunctively

Court orders

#
  1. 1.The Application dated 11.06.2026 be and is hereby Dismissed.
  2. 2.Each party shall bear own costs of the application.

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Order 25 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Articles 159 and 168 of the Constitution, 2010

Relief refused

#

Review of the ruling/consent entered into on 24.03.2026 setting aside the default judgment of 06.11.2025

The Applicants failed to establish the circumscribed grounds for setting aside a consent order (fraud, misrepresentation, deceit, mistake, illegality or public policy) and made only vague, unsubstantiated allegations

p. 6

Reinstatement of the default/exparte judgment delivered on 06.11.2025

The consent has been consummated - a statement of defence has been filed and thrown away costs paid - so reinstating judgment alongside a standing defence would create an absurdity

p. 9

Invitation to expunge the statement of defence via the court's inherent jurisdiction

Inherent jurisdiction cannot be invoked where the matter is covered by express provisions of law, and a court can only grant relief expressly sought

p. 8

Costs

Each party shall bear own costs of the application.

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.

i. The Application dated 11.06.2026 be and is hereby Dismissed. ii. Each party shall bear own costs of the application.
p. 9Final orders - dismissal and costs
it is common ground that a consent order or judgment can only be set aside on similar grounds that would warrant the setting aside of a contract.
p. 5Grounds for setting aside a consent order
Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them
p. 6Binding nature of consent orders (quoting Wasike v Wamboko)
the inherent jurisdiction of the court cannot be invoked and deployed to deal with or address a situation that is expressly provided for under the law.
p. 8Limits of inherent jurisdiction
A court of law cannot venture forward and issue orders that are incompatible and inherently, contradictory.
p. 8Absurdity of reinstating default judgment alongside a standing defence
It is not enough for an omnibus or vague allegation[s] to be made without any efiort to substantiate same.
p. 7Burden of substantiating allegations

Issues in the judgment

#
minor

The parties' full names are not disclosed in the judgment; the Plaintiffs are identified only through the deponent of the supporting affidavit

minor

Typographical/OCR errors throughout, e.g. 'Plaintifis', 'afiord', 'efiect', 'suficient', and an incomplete sentence before the final orders

minor

Inconsistent dates for the Wasike v Wamboko authority within the judgment

minor

Counsel for the Applicants is inconsistently identified ('Mr. Motende Atenga' in the grounds versus 'Mr. Morgan Mwenda' in the appearance list)

minor

The application is dated 11.06.2026 and heard on 29.06.2026, i.e. dates in the future relative to normal court records

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Kemama & another (Suing as Personal Representative of the Estate of Amadeo Raymond Kemama - Deceased) v Guangxi Hydroelectric Construction Bureau Kenya Ltd (Environment and Land Case E001 of 2024) [2026] KEELC 4323 (KLR)", Case Analysis (2026). Not stated in judgment (Notice of Motion dated 11.06.2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4323/eng@2026-06-29

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