Maureen Kairuthi Maingi & 1 other v Wycliff Otieno Omollo & 1 other

be deposited in an escrow account pending the intended appeal. 2. The application is expressed to be brought under Sections 1A, 1B, 3A and 5 of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. It is supported by the Applicant's affidavit in which she deposes that the claim arose from a road traffic accident, that her insurer ought to have indemnified the Respondent's insurer, that she did not authorize the consent entered before the Small Claims Court and that execution would occasion her irreparable loss. 3. The Respondent opposed the application through a Replying Affidavit sworn by the 1st Respondent and Grounds of Opposition. The Respondent avers that the Applicant duly instructed advocates in the Small Claims Court, participated in negotiations culminating in a consent judgment and defaulted in honouring the agreed instalments, thereby triggering lawful execution. 4. It is further contended that the Applicant has neither established grounds for setting aside a consent judgment nor satisfied the requirements for stay or injunction, and that the application is an abuse of the court process intended only to delay execution. 5. In her written submissions, the Applicant reiterates that she has an arguable intended appeal because the Respondent pursued her personally despite the existence of valid insurance cover and challenges the validity of the 2

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consent judgment. She urges the Court to preserve the subject matter pending appeal. 6. The Respondent and the 2nd Interested Party, on their part, submit that the Applicant has not satisfied the principles for grant of an interlocutory injunction as enunciated in Giella vs. Cassman Brown & Co. Ltd [1973] EA 358 and expounded in Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR. 7. They further submit that a consent judgment can only be set aside on grounds such as fraud, collusion, mistake or misrepresentation, none of which has been demonstrated. Reliance is placed on Board of Trustees National Social Security Fund vs. Michael Mwalo [2015] eKLR on the binding nature of consent judgments, Flora N. Wasike vs. Destimo Wamboko [1988] eKLR, and Daniel Kamau Mugambi vs. Housing Finance Co. of Kenya Ltd [2006] eKLR on the equitable nature of injunctive relief. Analysis and Determination 8. Having considered the application, affidavits and submissions, I find that the issues for determination are whether the Applicant has established a basis for grant of injunctive relief pending appeal and whether sufficient grounds have been laid for setting aside the consent judgment. 9. The applicable principles for grant of an interlocutory injunction remain those set out in Giella vs. Cassman 3

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Brown (supra) as refined in Nguruman Ltd vs. Jan Bonde Nielsen (supra) namely, the establishment of a prima facie case, irreparable injury, and where in doubt, determination on a balance of convenience. Equally settled is the principle that a consent judgment has contractual effect and may only be set aside on grounds that would justify setting aside a contract, including fraud, collusion, illegality, mistake or misrepresentation. 10. The material placed before this Court shows that the Applicant was represented by counsel before the Small Claims Court, that negotiations were undertaken that culminated in a consent recorded before the trial court and that the Applicant made part payment pursuant to that consent before defaulting, whereupon execution commenced. I note that beyond the bare allegation that she did not authorize the consent, no evidence has been presented before this court to show that there was fraud, collusion, mistake or any other vitiating factor at the time of recording the consent capable of impeaching the said consent judgment. 11. Similarly, I note that the apprehended execution arises from a valid subsisting decree. The loss complained of is monetary in nature and is therefore capable of compensation should the intended appeal ultimately succeed. I find that the balance of convenience therefore favours allowing the successful litigant to enjoy the fruits of the judgment. 4

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12. Accordingly, I find that the Applicant has failed to establish a prima facie case or any legal basis for interfering with the consent judgment or the ensuing execution process. 13. In sum, I find that the Notice of Motion dated 20th January 2026 is not merited and I therefore dismiss it with costs to the 1st Respondent and the 2nd Interested Party. The interim orders, if any, are hereby discharged. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026 HON W A OKWANY JUDGE 5

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