Wekesa. L Martin v Richard Jesome Wasike

6. In its ruling, the trial court allowed the respondent’s application, finding that it was in the interests of justice to do so and that the appellant would not be prejudiced if the application was allowed. 7. Dissatisfied with the said judgment/decree, the appellant lodged this appeal vide the Memorandum of Appeal dated 29/8/2024 and raised eight (8) grounds of appeal as follows: a. That the learned trial magistrate erred in law and fact by allowing the application and setting aside a consent entered by parties despite the respondent having not raised any substantial ground to warrant the setting aside of the consent. b. That the learned trial magistrate erred in law and fact by failing to appreciate the fact that the respondent never proved the principles of setting aside the consent order thereby arriving at a wrong decision. c. That the learned trial magistrate erred in law and fact by failing to appreciate that there was no evidence adduced to proof that the consent dated 5th December 2023 was ever characterized by misrepresentation of facts, fraud, omission of material facts to be cured by review of the consent. d. That the learned trial magistrate misdirected himself and misapplied the law by failing to exercise his discretionary powers judiciously thereby without any legal justification setting aside a consent that was mutually entered into by the parties. e. That the learned trial magistrate erred in law and fact by failing to totally or at all consider and appreciate the evidence and issues raised by the appellant’s replying affidavit dated 31st July 2024. f. That the learned trial magistrate erred in law and fact by failing to appreciate evidence on record which showed that the respondent’s proposal to offer the appellant land as an alternative to monetary settlement of the decretal sum of Kshs. 3,493,125/- was made in bad faith and with fraudulent intent and as a dishonest option. g. That the learned trial magistrate erred in law and fact by failing to appreciate that the appellant being the decree holder was legally at liberty to realize the proceeds of his judgement using his own preferred mode of execution which is the Notice to Show Cause especially arising from a consent which the respondent had defaulted. h. That the learned trial magistrate findings were a violation of rules of natural justice and his discretional finding was wrong and cannot be substantial in law. 8. The appeal was disposed of by written submissions. The appellant submitted that the respondent failed to satisfy the requirements for setting aside the consent order, as set out in Hirani v Kasam (1952) 19 E.A, and therefore the trial magistrate erred in law in setting aside the consent order. 9. On his part, the respondent submitted that he invoked the ‘force majeure’ limb, arguing that the unforeseen bereavements he suffered after signing the consent constituted a material change in circumstances not contemplated at the time of the consent. He relied on the cases of Flora Wasike v Destimo Wamboko (1982 – 1988) 1 KAR 625 and Brooke Bond Liebig v Mallya 1975 E.A. 266. He further argued that the deaths of his family members frustrated the consent and that requiring performance of the consent is absurd, unfair and unjust. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5501/eng@2026-04-16 2

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Analysis And Determination 10. As this is a first appeal, the court is duty-bound to evaluate the trial evidence afresh and reach its own independent findings and conclusions, but at all times bearing in mind that it did not have the advantage of seeing the witnesses testify( see Selle & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123). 11. The facts in this case have been set out; the only issue for determination is whether the trial court erred in setting aside the consent order adopted on 6/12/2023. 12. In Flora N. Wasike vs Destimo Wamboko [1988] eKLR Hancox JA held the view that: “ It is now settled law that a consent judgment or order has a contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out.” 13. The Honourable Judge went further and cited Setton on Judgments & 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.” 14. 15. In Kenya Commercial Bank Ltd v Specialised Engineering Company Ltd [1982] KLR 485, Harris J stated: “ 1. A consent order entered into by Counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement. 2. A duly instructed advocate has an implied general authority to compromise and settle the action and the client cannot avail himself of any limitation by him of the implied authority to his advocate unless such limitation was brought to the notice of the other side.” Lastly in Brooke Bond Liebig v Mallya (1975) EA 266 Mustafa Ag. VP stated: “ The compromise agreement 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 circumstance, e.g on grounds of fraud, 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5501/eng@2026-04-16 3

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16. The above-cited authorities are clear that a consent order will be set aside only if it can be shown that it was procured by fraud, non-disclosure of material facts, or mistake, or for any other reason that would enable a court to set it aside. 17. According to the record, on 6/12/2023, the parties entered into a consent agreement under which the respondent would settle the decretal amount of Kshs. 3,493,125/- in instalments, as he had proposed, with Kshs. 1 million paid on 5/1/2024, Kshs. 1 million on 5/4/2024, Kshs. 1 million on 5/8/2024, and Kshs. 493,125 on 5/12/2024. The parties further consented that, in default of payment, a Notice to Show Cause would issue against the respondent. 18. The respondent contended that, following the adoption of the consent, he lost four of his family members and spent his savings to lay them to rest. He further contended that this force majeure frustrated the consent and that it would be absurd to expect him to meet its terms. 19. Having considered the reason advanced by the respondent for seeking to have the consent of 6/12/2023 set aside, it is my view that the reasons do not fall within those contemplated, as set out hereinabove. It is also my finding that the reason advanced by the respondent did not demonstrate that the consent was procured by fraud, non-disclosure of material facts, or mistake. Further, as to whether the given reason would enable a court to set the consent aside, I am not satisfied that the respondent demonstrated this before the trial court. This is because the respondent contended that he took the appellant to two different parcels of land, from which the appellant could choose in exchange for the decretal sum, but the appellant declined to accept either. I find that, if the respondent was genuine in wanting to grant the appellant a piece of land in satisfaction of the decretal amount, there was no reason why he never offered the original piece of land that was the subject of the suit between him and the appellant. The appellant contended that the properties he was shown were of lesser value than the decretal sum, and the respondent did not controvert this by providing valuations for the said parcels. 20. The upshot of the above is that I am of the view that the respondent failed to demonstrate any requirement to set aside the consent judgement entered on 6/12/2023. Consequently, the trial magistrate erred in setting aside the aforementioned consent. 21. I find that this appeal has merit. I set aside the trial court's ruling delivered on 7/8/2024 and uphold the consent entered on 6/12/2023. Costs of this appeal are awarded to the appellant. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS DAY, 16TH OF APRIL 2026. R.E. OUGO JUDGE In the presence of ; Mr. Masiga -For the Appellant Mr. Maloba -For the Respondent Wilkister /Adan C/A https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5501/eng@2026-04-16 4

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