https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7424

Board of Management AIC Kamoiywo Girls Secondary School v Mwaita t/a Blue Penguin Enterprises (Civil Appeal E070 of 2024) [2026] KEHC 7424 (KLR) (2 June 2026) (Ruling) Neutral citation: [2026] KEHC 7424 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E070 of 2024 RN Nyakundi, J June 2, 2026 Between The Board of Management AIC Kamoiywo Girls Secondary School Appellant and Gibson Mwaita t/a Blue Penguin Enterprises Respondent Ruling 1.The Appellant being aggrieved by the Judgement of Hon. Areri in Eldoret CMCC 637 OF 2018 filed a Memorandum of Appeal dated 9th April 2024 praying for the following;a.This appeal be allowed with costs.b.The trial magistrate's judgment against the Appellants be set asidec.An order be made dismissing the Respondents case against the Appellants with costs.d.This Honorable Court makes such and further orders as it deems fit and just to meet the ends of justice. 2.The Appeal is made on the following grounds;a.The learned Magistrate erred in law and in fact in finding that there was a contractual relationship between the Appellant and the Respondent.b.The learned Magistrate erred in law and in fact in finding that the Appellant did not file a defense.c.That the learned trial Magistrate erred in law and fact by failing to consider the Plaintiff's submissions.d.That the learned trial Magistrate erred in law and fact by failing to consider public procurement laws and regulations in making the determination.e.That the learned trial Magistrate erred in law and fact by failing to determine the case on the basis of the law and the available facts before him. 3.During the pendency of this matter as was scheduled for Judgment, my attention was brought to a consent dated 12th May 2026 in which the parties have agreed to have the instant suit marked as settled in the following terms;i.A sum of Kshs. 280,000/- (Kenyan shillings Two Hundred and Eighty Thousand to be paid at the time of signing this Consent Order.ii.A further sum of Kshs. 120,000/- (Kenyan shillings One Hundred and Twenty Thousand) to be paid before 30th July 2026.iii.That the final balance of Kshs 262,339/- (Kenyan Shillings Two Hundred and Sixty-Two Thousand, Three Hundred and Thirty-Nine) to be paid on or before 27th February 2027.iv.This Suit and Appeal Eldoret HCCA E070 of 2024 be and is hereby marked as settled.v.The Garnishee Order against account numbers 1112XXX and 1124XXX at KCB Bank Kapsabet be dischargedvi.In default execution, to proceed in realization of the outstanding amount Decision 4.This Appeal was pending before this Court for hearing and determination pending the status conference which lay down the procedural protocols by canvassing it by way of Written Submissions. It is worth noting that during the pendency of the Appeal, both parties under Article 15 (2)(c) of the Constitution negotiated the issues raised in the Memorandum of Appeal to reach a consent which was reached and now required to be adopted by the Court. 5.The Court in Hausram Limited v. Nairobi City County Civil Case No. 421 of 2013; [2013] eKLR where the learned Judge, Havelock J, held:“Further, I am of the belief that Article 159(2)(c) of the Constitution, 2010 is expressed in mandatory terms and this Court is under a duty to promote alternative forms of dispute resolution. This is all the more so when the parties themselves have chosen the forum as is the case here. This Court, as the Defendant has pointed out in its submissions, cannot rewrite the Contracts already entered into between the parties…” 6.A consent order once adopted by the Court it becomes a Judgment of the Court putting the Court functus officio. Therefore, when a Court adopts a consent agreement to settle a dispute it elevates the agreement into a binding Court order governed by general contract law. Hence Courts enforce this Judgment strictly and only permit them to be set aside or varied under exceptional circumstances of fraud or mistake. 7.It is in this respect guided by the above I adopt the following consent and all its covenants as a Judgment of this Court capable of being executed and enforced under the legal framework of the Civil Procedure Rules;Thus, the matter be compromised in the following terms:i.A sum of Kshs. 280,000/- (Kenyan shillings Two Hundred and Eighty Thousand to be paid at the time of signing this Consent Order.ii.A further sum of Kshs. 120,000/- (Kenyan shillings One Hundred and Twenty Thousand) to be paid before 30th July 2026.iii.That the final balance of Kshs 262,339/- (Kenyan Shillings Two Hundred and Sixty-Two Thousand, Three Hundred and Thirty-Nine) to be paid on or before 27th February 2027.iv.This Suit and Appeal Eldoret HCCA E070 of 2024 be and is hereby marked as settled.v.The Garnishee Order against account numbers 1112XXX and 1124XXX at KCB Bank Kapsabet be dischargedvi.In default execution to proceed in realization of the outstanding amount 8.It is so ordered DATED AND DELIVERED AT ELDORET THIS 2ND DAY OF JUNE 2026.............................................R. NYAKUNDIJUDGE