https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5180

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA** **ELC APPEAL NO. E060 OF 2025** **ALEX AKUNGWI NALIANYA…………………………………………..APPELLANT** **VERSUS** **STEPHEN WAKHULE TUBEI……………………………………..1ST RESPONDENT** **JACOB PEPELA MAKOKHA……………………………………...2ND RESPONDENT** **GETRUDE MELSAH WAKHULE…………………………………3RD RESPONDENT** **DERRICK SAKWA WAKHULE……………………………………4TH RESPONDENT** *(Being an appeal from the ruling of Hon. Angeline Odawo, Resident Magistrate, delivered on 18th June 2025 in Kakamega MCELC No. E103 of 2022)* **JUDGMENT** **INTRODUCTION AND BACKGROUND** 1. This appeal arises from a dispute over party-and-party costs following the termination of Kakamega MCELC No. E103 of 2022. The appellant was the plaintiff in that suit while the respondents were the defendants. 2. The material placed before this Court shows that the appellant’s suit was brought to an end with costs to the respondents, the appellant having been advised to pursue his claim before the proper court. The respondents thereafter presented a bill of costs. At the material time the appellant was represented by the firm of M/s Shivachi Mutoka & Company Advocates, while the respondents were represented by M/s Ombito & Company Advocates. 3. The advocates then recorded a consent settling the respondents’ costs at Kshs. 102,000. A certificate of costs was issued for that amount. The record also refers to a warrant of attachment signed on 26th July 2024 reflecting the agreed sum. 4. Execution subsequently commenced. A notice to show cause dated 14th April 2025 demanded Kshs. 208,000. The appellant challenged the process, asserting that he had not personally authorised the consent, that the court documents had been altered by hand, and that the amount demanded was exaggerated. 5. By a notice of motion dated 2nd May 2025, the appellant moved the trial court for relief. Although the application itself is not reproduced with clarity in the record of appeal, the supporting material and the impugned ruling show that its central object was to halt execution and displace the consent on costs. The application was opposed and the parties made oral submissions. 6. In the ruling delivered on 18th June 2025, the learned magistrate held that a consent order could only be disturbed on grounds that would justify rescission of a contract, including fraud or collusion. She found that the advocate who acted for the appellant had instructions to represent him and that the consent was validly entered. 7. The learned magistrate, however, separately examined the notice to show cause and found that the sum of Kshs. 208,000 stated in it was unsupported and did not correspond with the consent sum of Kshs. 102,000. She consequently dismissed the notice to show cause of 14th April 2025 on her own motion and directed the respondents to take out a fresh notice reflecting the proper amount. She nevertheless dismissed the appellant’s application dated 2nd May 2025 with costs. 8. Aggrieved by that decision, the appellant lodged the present appeal. **THE APPEAL** 1. The memorandum of appeal dated 30th June 2025 contains seven grounds. In substance, the appellant faults the learned magistrate for: 2. forming her own evidence instead of considering the grounds placed before her; 3. failing to analyse fully the grounds appearing on the face of the application; 4. misconceiving the grounds advanced by the appellant; 5. failing to appreciate that the consent was recorded without the appellant’s input; 6. failing to find that the respondents’ counsel had exaggerated the costs and inserted figures in court documents; 7. failing to appreciate that the court decree had been altered by hand; and 8. rendering a contradictory ruling by allegedly finding the application meritorious and yet dismissing it with costs. 9. The appellant asks that the appeal be allowed, the ruling of 18th June 2025 be set aside, varied or discharged, and the respondents be ordered to bear the costs of the appeal. **THE PARTIES’ SUBMISSIONS** 1. The appellant filed brief written submissions. He maintained that the certificate of costs had been doctored or altered by hand and that the advocates recorded the consent on costs without his input. He further contended that the bill of costs dated 1st January 2023 was exaggerated and manipulated. He therefore asked the Court to strike out the bill and allow the appeal with costs. 2. The respondents opposed the appeal. They submitted that the appellant’s advocate was properly on record and had authority to represent him when the consent was recorded. Their position was that a court does not ordinarily inquire into the terms of the instructions between an advocate and client and that, in the absence of fraud, mistake or misrepresentation, a consent order remains binding. 3. The respondents relied on ***Cross Country Ventures Limited v Nairobi City County (Environment and Land Case No. 86 of 2018) [2025] KEELC 4099 (KLR), Board of Trustees, National Social Security Fund v Michael Mwalo [2015] eKLR, and Daniel Kirui v Geoffrey Njuguna Kimani [2016] KEHC 3734 (KLR)***. They submitted that the appellant had not established fraud, collusion or mistake and had not identified any particular item in the bill that was improperly taxed. They urged the Court to dismiss the appeal with costs. **ISSUES FOR DETERMINATION** 1. Having considered the record of appeal, the grounds of appeal and the parties’ submissions, the issues that arise for determination are: 2. whether the consent settling the respondents’ costs at KShs. 102,000 was liable to be set aside; 3. whether the learned magistrate failed to address the alleged alteration and exaggeration of the execution documents; 4. whether the ruling was contradictory; and 5. what orders should issue on the appeal and costs. **ANALYSIS AND DETERMINATION** **Duty of the Court on a first appeal** 1. This being a first appeal, this Court is required to reconsider and evaluate the material that was before the trial court and arrive at its own conclusions. However, to the extent that the appeal challenges the learned magistrate’s exercise of discretion, this Court will not interfere merely because it might have reached a different conclusion. Appellate intervention is justified where the trial court misdirected itself in law, took into account an irrelevant consideration, failed to consider a relevant matter, or reached a conclusion that was plainly wrong. **Whether the consent settling the respondents’ costs at KShs. 102,000 was liable to be set aside** 1. The starting point is the legal character of a consent order. A consent judgment or order has contractual effect. It is binding upon the parties and may only be varied or set aside on grounds that would justify the setting aside of a contract, such as fraud, collusion, mistake, misrepresentation, an agreement contrary to the policy of the court, or circumstances showing that the consent was given without sufficient material facts or under a misapprehension of such facts. 2. The principles governing the setting aside of a consent judgment are settled. In **Flora N. Wasike v Destimo Wamboko [1988] eKLR,** the Court of Appeal held that a consent judgment has contractual effect and may only be set aside on grounds that would justify the rescission of a contract or where an agreed condition remains unfulfilled. That principle was restated in ***Board of Trustees, National Social Security Fund v Michael Mwalo [2015] eKLR.*** The decision in **Daniel Kirui v Geoffrey Njuguna Kimani [2016] KEHC 3734 (KLR)**, cited by the respondents, applied the related formulation in **Hirani v Kassam,** which includes fraud, collusion, mistake, misapprehension or ignorance of material facts. 3. Where the consent is recorded by counsel, the advocate’s authority is also material. In **Kenya Commercial Bank Limited v Specialized Engineering Company Limited [1982] KLR 485**, the Court of Appeal held that an advocate properly retained has general authority to compromise proceedings unless that authority has been limited and the limitation is known to the opposite party. More recently, in **Guzzini & another v Tinga & 7 others (Civil Appeal E047 of 2021) [2024] KECA 493 (KLR)**, the Court of Appeal reiterated that a court is not ordinarily required to inquire into the private terms of counsel’s instructions and that, in the absence of fraud, mistake or misrepresentation, a consent recorded by counsel remains binding. **Cross Country Ventures Limited v Nairobi City County [2025] KEELC 4099 (KLR)**, also cited by the respondents, is an application of those principles. 4. In the present case, the appellant does not deny that M/s Shivachi Mutoka & Company Advocates were properly on record for him when the consent was entered. His complaint is that he did not personally participate in the negotiations or authorise the agreed figure of KShs. 102,000. That assertion, without more, is not a recognised ground for setting aside a consent recorded by an advocate who was duly on record. 5. A litigant who appoints an advocate generally holds that advocate out as having authority to conduct the litigation, including authority to compromise matters arising in the proceedings. Where the advocate’s authority has been expressly limited, the party seeking to avoid the resulting consent must place credible material before the court establishing that limitation and, where relevant, showing that the opposite party knew of it. 6. No such material was placed before the trial court. The appellant did not produce any correspondence withdrawing or restricting his advocate’s authority before the consent was recorded. He did not place before the court an affidavit from his former advocate denying authority, explaining that the consent was entered by mistake, or alleging that it had been procured through fraud, collusion or misrepresentation. His assertion that the consent was entered without his personal input did not, by itself, discharge the burden of impeaching it. 7. The appellant also alleged fraud. Fraud must be specifically pleaded and strictly proved, although the standard of proof does not extend to proof beyond reasonable doubt. It cannot be inferred merely from a litigant’s subsequent dissatisfaction with a compromise made by counsel. 8. The appellant did not identify any false representation made by the respondents or their advocate which induced the consent. Neither did he demonstrate any collusive arrangement between the advocates, concealment of a material fact, or mistake concerning the agreed sum of Kshs. 102,000. The learned magistrate was therefore correct in finding that the threshold for setting aside the consent had not been met. **Whether the trial court failed to address the alleged alteration and exaggeration of the execution documents** 1. The appellant’s second principal complaint concerns the alleged alteration of court documents and exaggeration of the respondents’ costs. In addressing that complaint, it is necessary to distinguish three separate documents and processes: the respondents’ bill of costs; the consent by which the bill was compromised at Kshs. 102,000; and the subsequent notice to show cause dated 14th April 2025 demanding Kshs. 208,000. 2. The bill of costs represented the respondents’ claim for costs before the parties reached a compromise. Once the advocates agreed upon the figure of Kshs. 102,000 and the consent was adopted by the court, the individual items in the bill ceased to await determination through taxation. The amount recoverable as party-and-party costs became the agreed sum of Kshs. 102,000, subject to payments made and any other sums lawfully accruing and properly demonstrated during execution. 3. The copy of the certificate of costs contained in the record certifies that the respondents’ costs were consented to and allowed in the sum of Kshs. 102,000. The appellant repeatedly alleged that the certificate, decree or execution document had been altered by hand. He did not, however, identify with precision the entry that was altered, the original content of that entry, the person who made the alteration, or the effect of the alleged alteration upon the consent. 4. More importantly, the appellant did not demonstrate that the alleged handwritten alteration changed the agreed amount of Kshs. 102,000 or that it was connected to the circumstances in which the consent was recorded. No evidence from the court registry or other cogent material was placed before the trial court to establish that the consent, certificate of costs or warrant of attachment had been fraudulently altered. A bare allegation of alteration, without proof connecting it to the consent, could not justify setting aside the agreement. 5. The position was materially different in relation to the notice to show cause dated 14th April 2025. That notice demanded Kshs. 208,000, which was more than twice the consent sum. The material before the trial court did not contain a computation explaining how the agreed amount of Kshs. 102,000 had increased to Kshs. 208,000. 6. The learned magistrate expressly considered that discrepancy and agreed with the appellant that the amount stated in the notice to show cause was exaggerated and unsupported. She consequently dismissed the notice to show cause of 14th April 2025 on her own motion and directed that, if the respondents wished to proceed with execution, they should take out a fresh notice reflecting the correct amount. 7. The contention that the learned magistrate ignored the allegations of alteration and exaggeration is therefore not supported by the ruling. The court distinguished the valid consent from the defective execution process. It preserved the consent for Kshs. 102,000 but rejected the unsupported demand for Kshs. 208,000. 8. That distinction was legally sound. A defect in a subsequent notice to show cause did not, without more, invalidate the earlier consent on costs. The appropriate remedy was to nullify the defective execution process while leaving the underlying consent intact. That is precisely what the learned magistrate did. **Whether the ruling was contradictory** 1. The appellant further contends that the ruling was internally contradictory because the learned magistrate allegedly found his application meritorious but nevertheless dismissed it with costs. That argument arises from reading one part of the ruling outside its context. 2. The learned magistrate did not state that the application dated 2nd May 2025 was meritorious. What she stated was: “**An analysis of the notice to show cause dated 14/4/2025, I do agree with the applicant that the same is exaggerated**.” She then proceeded to dismiss that particular notice to show cause on her own motion. Her concluding statement that she did not find the application meritorious referred to the appellant’s attempt to displace the consent and obtain the reliefs sought in the application. 3. The two conclusions addressed different questions. The first concerned whether the consent fixing costs at Kshs. 102,000 was liable to be set aside. The second concerned whether the notice to show cause demanding Kshs. 208,000 could lawfully be sustained. 4. The learned magistrate found that the consent was valid because the appellant had not established fraud, collusion, mistake or any other recognised ground for setting it aside. At the same time, she found that the notice to show cause was defective because the amount demanded was unsupported and did not correspond with the consent sum. Those findings were not inconsistent. They could, and did, properly coexist. 5. The appellant therefore succeeded only to the limited extent that the impugned notice to show cause was dismissed. He did not succeed in his principal attempt to set aside the consent. The dismissal of the application was consequently not inconsistent with the court’s separate intervention in the defective execution process. **Whether the award of costs should be disturbed** 1. The appellant also challenges, in general terms, the order requiring him to bear the costs of the application. Under section 27 of the Civil Procedure Act, costs are within the discretion of the court, although they ordinarily follow the event. An appellate court will not interfere with an order on costs unless it is shown that the trial court acted on a wrong principle, took into account an irrelevant consideration, failed to consider a relevant matter, or made an order that was plainly unjust. 2. The principal relief sought by the appellant was not granted. His application to displace the consent was dismissed. He has not demonstrated that the learned magistrate acted on a wrong principle in awarding the respondents the costs of the unsuccessful application. I therefore find no sufficient basis for interfering with that exercise of discretion. **What orders should issue** 1. Having reconsidered the record, I am satisfied that the learned magistrate applied the correct principles governing consent orders. The appellant failed to establish that the consent was obtained through fraud, collusion, mistake or misrepresentation. He also failed to demonstrate that his advocate’s authority had been restricted in a manner known to the respondents or their advocate. 2. The learned magistrate also considered and appropriately addressed the unsupported demand contained in the notice to show cause. By dismissing that notice while preserving the consent, she correctly distinguished the respondents’ substantive entitlement to the agreed costs from the defective process employed to enforce them. 3. For completeness, the respondents may only execute the consent according to its lawful terms. Any fresh notice to show cause must disclose a clear and verifiable computation. It shall take the consent sum of Kshs. 102,000 as its starting point, deduct any payments proved to have been made, and separately identify the legal basis and computation of any additional amount claimed. The ruling of 18th June 2025 did not validate the earlier demand of Kshs. 208,000; it expressly nullified the notice to show cause containing that demand. 4. I accordingly find that the learned magistrate did not misdirect herself in law, fail to consider a relevant matter, or arrive at a plainly wrong conclusion. The grounds of appeal are without merit and the appeal must fail. **DISPOSITION** 1. In the result, I make the following orders: 2. The appeal is dismissed. 3. The ruling and orders of the trial court delivered on 18th June 2025 in Kakamega MCELC No. E103 of 2022 are upheld. 4. For the avoidance of doubt, the consent on costs for Kshs. 102,000 remains binding, but the notice to show cause dated 14th April 2025 for Kshs. 208,000 remains dismissed. Any fresh execution process shall be based on a transparent computation of the consent sum, less payments proved, together only with such further sums as are lawfully recoverable and specifically itemised. 5. The interim order of status quo issued on 3rd July 2025 is hereby discharged. 6. The respondents shall have the costs of this appeal. It is so ordered. DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT VIHIGA THIS 21ST DAY OF JULY 2026. **P. MUSYIMI** **JUDGE** **Judgment delivered in the presence of:** Mr. Kevin Ombima: Court Assistant Mr. Alex Akungwi Nalianya: Appellant Ms. Masakwa for the Respondents