https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12122

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI COMMERCIAL DIVISION** **CIVIL SUIT NO. E139 OF 2021** **DINESH CONSTRUCTION LIMITED ............................ PLAINTIFF/APPLICANT** **-VERSUS-** **KENYA MEDICAL ASSOCIATION HOUSING** **CO-OPERATIVE SOCIETY LIMITED..................... DEFENDANT/RESPONDENT** **AND** **ARTHI HIGHWAY DEVELOPERS** **LIMITED...........................................................1ST THIRD PARTY/RESPONDENT** **THE ATTORNEY GENERAL ....................... 2ND THIRD PARTY/RESPONDENT** **RULING** 1. Coming up for determination before this Honourable Court is the Plaintiff/Applicant's Notice of Motion application dated 10th November 2025. The Application is expressed to be brought under Section 80 of the Civil Procedure Act, Cap 21, Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules, 2010, alongside Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159(2)(d) of the Constitution of Kenya, 2010. 2. The Applicant essentially seeks the discretionary intervention of this Court to review, vary and/or set aside the procedural or interlocutory orders issued by this Court by Honourable Justice Visram Aleem Alnashir on 17th April 2024. The impugned orders directed, inter alia, that the present commercial matter shall continue to be held in abeyance until the conclusion of **ELC Case No. 385/2017; Kenya Medical Association Housing Cooperative Society Limited vs Arthi Highway Developers Limited & Another.** 3. The Application is supported by the Affidavit of Fredrick Opondo, sworn on 10th November 2025 and relies on several grounds set out on the face of the Motion. **THE APPLICANT'S CASE** 1. The Applicant’s principal grievance is that the continued stay of the present suit pending the outcome of the Environment and Land Court (ELC) matter causes undue delay and a denial of substantive justice. Mr. Fredrick Opondo deposes that the issues raised in this suit are purely commercial disputes arising from a construction contract, which are distinct and separate from the land-related issues in Nairobi ELC No. 385 of 2017. 2. The Applicant further laments that since its filing in 2017, the hearing of the ELC case has never taken off. To illustrate this, the Applicant points out that the ELC matter had been scheduled for mention for further directions on 4th February 2026, meaning a final determination is far from being realized. It is argued that pegging the resolution of this commercial dispute on a stalled eight-year-old ELC matter violates the overriding objective of the Court under Sections 1A and 1B of the Civil Procedure Act, which mandate the just, expeditious and proportionate resolution of civil disputes. 3. On the question of delay in bringing the instant application for review, the Applicant explains that it was occasioned by an extended, court-annexed mediation process that commenced on 7th May 2024 and concluded unsuccessfully on 5th June 2025, when the Attorney General’s representatives pulled out of the negotiations. The Applicant urges that it had a bona fide belief that the mediation would resolve the dispute, hence the delay. 4. In legal submissions, the Applicant relies heavily on the Court of Appeal decision in **Official Receiver and Liquidator v Freight Forwarders Kenya Limited [2000] KECA 19 (KLR)** and **Shanzu Investments Ltd v Commissioner of Lands [1993] KECA 36 (KLR)** for the proposition that the words "any other sufficient reason" in Order 45 Rule 1 confer an unfettered discretion upon the Court to review its own orders in the interest of justice. **THE RESPONDENT'S CASE** 1. The Application is vehemently opposed by the Defendant/Respondent via a Replying Affidavit sworn by Dr. Hezron Odondi Opere on 27th November 2025 and elaborated in its written submissions. 2. The Respondent submits that the impugned order of 17th April 2024 was a Consent Order freely and voluntarily entered into by the parties. It is the Respondent's contention that setting aside the consent order would be akin to rescinding a binding contract without the requisite legal grounds vitiating a contract, such as fraud, mistake, misrepresentation, duress, or coercion, none of which the Applicant has pleaded or proved. 3. Furthermore, the Respondent vigorously challenges the Application on the basis of inordinate and unexplained delay. Pointing out that over eighteen (18) months elapsed between the delivery of the Consent Order and the filing of the Review Application, the Respondent argues that the Applicant has failed the mandatory requirement under Order 45 Rule 1 that an application for review must be brought "without unreasonable delay". The Respondent asserts that the mediation process did not act as a legal stay of proceedings, nor did it bar the Applicant from seeking a review concurrently. 4. The Respondent relies on a litany of authorities, prominent among them being **National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR,** which underscores that a review is not an appeal in disguise, and **Hirani v Kassam [1952] 19 EACA 131,** which establishes that a consent order can only be varied or discharged on grounds that would enable a court to set aside an agreement. **ISSUES FOR DETERMINATION** 1. Having carefully perused the pleadings, the affidavits on record, and the rival written submissions along with the cited jurisprudential authorities, the issues crystallizing for determination are: 2. Whether this Court has the jurisdiction to review, vary, or set aside a Consent Order under the circumstances presented. 3. Whether the Applicant has satisfied the statutory threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 4. Whether the Application is defeated by the doctrine of unreasonable delay. **ANALYSIS AND DETERMINATION** 1. The power of the High Court to review its own decisions is anchored in Section 80 of the Civil Procedure Act and operationalized by Order 45 Rule 1(1) of the Civil Procedure Rules, 2010, which provides: **"Any person considering himself aggrieved—(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay."** 1. Thus, the jurisdiction to review is not at large. It is circumscribed by three distinct limbs: 2. discovery of new and important matter or evidence; 3. a mistake or error apparent on the face of the record; or 4. any other sufficient reason. This is further qualified by the overriding precondition that the application must be filed 'without unreasonable delay'. 1. **The Nature of the Impugned Order: Review of a Consent Order** 2. The first hurdle the Applicant faces is the nature of the order it seeks to upset. The Order of 17th April 2024 was not a determination on the merits after a contested hearing; it was an order entered by consent of the parties. It is a fundamental principle of our jurisprudence that a consent order or judgment is fundamentally a contract between the parties, super-added with the seal of the Court. 3. In the landmark case of **Hirani v Kassam [1952] 19 EACA 131**, which has been cited with approval in numerous Supreme Court and Court of Appeal decisions, the principle was clearly laid out: ***"*** ***It is now well settled law that a consent judgment or order has 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”*** 1. A similar position was taken by the Court of Appeal in **Flora Wasike v. Destimo Wamboko (1982 -1988) 1 KAR 625**, where Hancox JA reiterated that a consent judgment has contractual effect and can only be set aside on grounds which would justify setting a contract aside. The Supreme Court in **Kenya Commercial Bank Ltd & another v Muiri Cofee Estate Ltd & 3 others [2016] KESC 6 (KLR)** decisively concluded that it is inconceivable for matters determined by way of consent to be reopened merely because a party subsequently feels aggrieved, as this would violently disturb the crystallized rights and expectations of the parties. 2. In the instant Application, the Applicant has not pleaded, let alone demonstrated, that the consent order of 17th April 2024 was procured by fraud, coercion, misrepresentation, or mutual mistake. The Applicant's primary argument is that the ELC matter is taking too long to conclude. While the Court sympathizes with the Applicant regarding the pace of the litigation in the companion suit, buyer's remorse or commercial inconvenience does not amount to a legally cognizable ground to vitiate a binding consent order. The Applicant, advised by competent counsel, voluntarily elected to peg the progression of this suit to the ELC matter. It must lie in the bed it made. 3. **Have the Grounds for Review Been Met?** 4. Assuming, arguendo, that the Court could traverse the Consent Order purely on the review grounds under Order 45 Rule 1, I must assess if those grounds are met. The Applicant does not allege the discovery of new and important evidence. It does not point to an error apparent on the face of the record. Instead, the Applicant relies on the residuary clause ‘any other sufficient reason’. 5. The Applicant posits that the stalling of the ELC case and the failure of mediation constitute sufficient reason. The Court of Appeal in **National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR** warned that a review cannot be used as an appeal in disguise. Furthermore, the delay in the ELC matter which was filed in 2017 was a fact well within the knowledge of the Applicant when it consented to the stay in April 2024. A fact already known to a party at the time of entering a consent cannot subsequently metamorphose into a "sufficient reason" to set aside that very consent. The collapse of the mediation process is an unfortunate reality of alternative dispute resolution, but it does not, in law, confer a retroactive right to dismantle a valid court order. 6. **The Question of Unreasonable Delay** 7. Order 45 Rule 1 explicitly demands that a review application must be made without unreasonable delay. The impugned order was delivered on 17th April 2024. This Application was filed on 10th November 2025. This constitutes a delay of approximately eighteen (18) months. 8. The Court of Appeal has spoken comprehensively on this issue. In **Origo & another v Mungala [2005] KECA 356 (KLR)**, the Court emphasized that the requirement to file an application for review without unreasonable delay is mandatory. Further, in **Nyong'o & Others v. Attorney General (Civil Appeal 250 of 2019)**, the Court of Appeal was held that the requirement of timeliness in Order 45 is not ornamental; it serves the crucial values of finality, certainty and orderly administration of justice. Where delay occurs, it must be candidly and satisfactorily explained. 9. The Applicant attributes this significant delay to the mediation proceedings which collapsed in June 2025. However, there is no rule of law or procedure that halts the running of time for filing a review application merely because parties are engaged in mediation, especially when such mediation did not operate as a legal stay of the right to apply for review. 10. Furthermore, even after the mediation collapsed in June 2025, the Applicant waited a further five months before filing this application in November 2025. This additional delay remains starkly unexplained. I find and hold that the Application is afflicted by inordinate and unreasonable delay, which effectively disentitles the Applicant from the discretionary reliefs sought. **CONCLUSION AND DISPOSITION** 1. The doctrine of finality of litigation dictates that matters conclusively settled, particularly by way of a consent order, ought not to be re-litigated under the guise of an application for review. The Applicant seeks a second bite at the cherry without surmounting the formidable legal barriers set by Order 45 Rule 1 of the Civil Procedure Rules and the well-established jurisprudence governing consent judgments. 2. Ultimately, having evaluated the competing claims and the applicable law, I find that the Notice of Motion dated 10th November 2025 lacks merit. The Applicant has failed to establish any grounds to warrant the setting aside or variation of the Consent Order of 17th April 2024. 3. Consequently, I make the following orders: 4. The Plaintiff's Notice of Motion dated 10th November 2025 is hereby dismissed. 5. Costs of the Application are awarded to the Respondents. **IT IS SO ORDERED.** **Dated and delivered at Nairobi this 30th Day of JULY 2026.** **BENARD WAFULA MURUNGA** **JUDGE OF THE HIGH COURT** ***Delivered on virtual platform in the presence of:*** ***Rotich for the Plaintiff/Applicant*** ***Natalie Obago for Mbaluto the Defendant/Respondent*** ***George Simiyu for the 1st Third Party/Respondent*** ***.......................... for the 2nd Third Party/Respondent*** ***Kevin Babu - Court Assistant***