Ali Cars Ltd v Mwale (Miscellaneous Civil Application E505 of 2024) [2026] KEHC 10128 (KLR) (Civ) (6 July 2026) (Ruling) Neutral citation: [2026] KEHC 10128 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI (MILIMANI LAW COURTS) CIVIL MISCELLANEOUS CIVIL APPLICATION E505 OF 2024 SIFUNA NIXON, J JULY 6, 2026 BETWEEN ALI CARS LIMITED ................................................................................ APPLICANT AND JOSIAH MWALE .................................................................................. RESPONDENT RULING 1. This Application seeks to set aside a consent that the Applicant and the Respondent entered into for payment of the decretal sum in Nairobi Milimani Magistrate’s Court Commercial Case No.4828 OF 2016 wherein the Applicant was the Defendant. 2. The reason the Applicant has given for its quest for setting aside the said consent, is that it has after due diligence realized that there was no judgment, hence also no decree in that suit. That therefore the consent was as a result of mistake and misrepresentation. It believes that either there was no such judgment, or that the same was set aside by Mbogoli J. 3. The said consent which was by a consent letter dated 14th June 2024, was filed in this file, and later adopted on 10th July 2024 as an order of this Court (Ongeri, J). It was annexed to this Application as an annexture. The Respondent opposed this Application through his filed response. In which he maintained that the judgment existed. 4. Upon perusing the Application and the Reply to it, I find that the single issue for determination is whether there is sufficient reason for this court to set aside the said consent. 5. In Flora N. Wasike v. Destimo Wamboko [1985] KECA 149 (KLR), the Court of Appeal held that consents have contractual effect and can only be set aside on grounds similar to rescinding a contract. This is the legal position in Kenya. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10128/eng@2026-07-06 1
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6. In interrogating the Applicant’s grounds and assertion as to whether or not there was a judgment, this Court called for the lower Court’s file in the subject suit. Namely Nairobi Milimani Magistrate’s Court Commercial Case No. 4828 OF 2016. 7. The record on the file revealed that indeed there is a judgment. For that reason, the ground that there was no judgment hence that the said consent was based on a mistake of fact, lacks basis. 8. The Application is therefore misconceived, and is therefore hereby dismissed with no order as to its costs. DATED AND DELIVERED AT NAIROBI VIRTUALLY ON THIS 6TH DAY OF JULY 2026. PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10128/eng@2026-07-06 2
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