https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10533

REPUBLIC OF KENYA IN THE HIGH COURT AT MACHAKOS CIVIL APPEAL NO. E147 OF 2024 GLADYS NYOTEYO NYAKWARA ........................................................APPELLANT VERSUS  PATRICK MWANGI NDIRANGU ......................................................RESPONDENT (Being an appeal from the ruling of the Chief Magistrates Court at Mavoko by Hon. B. Ojoo (CM) delivered on 25th April 2024 in CMCC No. 199 of 2022) **JUDGEMENT** 1. The instant appeal arises from the ruling in the Chief Magistrates Court at Mavoko by Hon. B. Ojoo (CM) delivered on 25th April 2024 in CMCC No. 199 of 2022. 2. The appellant being aggrieved with aforesaid ruling lodged instant appeal vide the Memorandum of Appeal dated 22nd May 2024 and sets out the following grounds of appeal:- 3. *The Honourable Magistrate erred in law and fact in reaching a finding that the Appellant did not have a triable case yet appellant was not given chance to testify in her own case which is against the fundamental principles as enshrined in the Constitution.* 4. *The Honourable court erred in law and fact by not setting aside the consent order which was entered fraudulently by the advocate of the Plaintiff and Defendant without consulting the Appellant who had a plausible defence and by doing so, arrived at an erroneous decision.* 5. *The Honourable magistrate erred in law and fact by not setting aside the judgement when she found correctly that the Plaintiff had blatantly lied that he was a fare paying passenger in a motor vehicle which carries sand and by doing so, she arrived in an erroneous decision.* 6. *The Honourable magistrate erred in law and fact by refusing to consider the witness statement of the Defendant and the conductor respectively of motor vehicle Reg. No. KCQ 773Y who were ready to testify and in doing so, she arrived in an erroneous decision.* 7. *The Honourable magistrate erred in law and facts by failing to give any consideration of the case laws presented to her and which were binding on her and by doing so arrived at an erroneous decision.* 8. *The Honourable court erred in law and facts by interpreting that the Appellant failed to follow up on her case when there was overwhelming evidence showing that she was never invited for the hearing at all.* 9. *The Honourable magistrate erred in law and fact by not considering that the witness statements which the Defendant and the conductor of motor vehicle Reg. No. KCQ 773Y were never filed in court by the advocate of the insurance despite the same being taken at the time the pleadings were served on the Appellant.* 10. The Appellant prays that this appeal be allowed and the magistrate's court ruling of 25th April, 2024 and the Judgement dated of 29th November, 2023 be set aside and further that the court orders the suit to be heard afresh. 11. The background of matter arises from an alleged road traffic accident that occurred on 1st September 2019 in which the Respondent is said to have sustained personal injuries while on board motor vehicle registration number KCQ 773Y truck lorry (hereinafter “**the truck lorry**”), 12. The Appellant was the registered owner of the said truck lorry which she alleges she was using to do business of carrying sand and building materials to various clients. On 1st September, 2019, the Appellant dispatched her motor vehicle to go to Kajiado to collect sand and deliver the same to her client in Kitengela. 13. The Appellant had employed a driver by the name Stephen Nganga (deceased) and a conductor by the name Augustine Simiyu Mauka. The Respondent was not known by the Appellant at all. The conductor Augustine Simiyu in his witness statement at page 54 of the record of appeal, states that the Respondent was known by the driver who gave the Respondent a joy ride to Kajiado without the consent of the Appellant. When the vehicle was being driven along Nairobi- Mombasa Road at Prima Rosa area, the said lorry was involved in a road accident and injured the driver-and the Respondent herein. 14. The Respondent after the motor vehicle was involved in the accident, sued the Appellant and pleaded that he was a fare paying passenger in motor vehicle Reg. No. KCQ 773Y which carries sand. 15. The Appellant took the pleadings to her insurance company and wrote a witness statement together with her driver. She waited to be called-and testify in her case but she was never called. The advocates for the insurance company went ahead to enter consent on liability at 80% to 15% against the Appellant. The insurance company went a head and paid Kshs.3,000,000/- to the Respondent and asked the Appellant to pay another Kshs.3,000,000/=. 16. The Appellant questions how the case proceeded without her knowledge. The Appellant argues that had she testified, liability would have been much lesser than what was consented to. 17. The parties opted to canvass to appeal via submissions which they filed and exchanged. **Appellant’s Submissions** 1. The Appellant submitted on all the seven (7) grounds separately as highlighted in the memorandum of appeal. 2. On ground 1, the Appellant submitted that being the Defendant in the lower court case, she was not given a chance to testify in her own case. That when she was served with the pleadings in the lower court, she took the court papers to her Insurance Company. She was called to go and write a statement with the Insurance Company and explain what happened. She wrote a witness statement which is found at page 45 of the record of appeal. 3. The Appellant and her conductor in the truck lorry, being witnesses recorded statements with the Insurance Company which meant that they were expected to be called during the hearing of the case. The case was conducted without the Appellant being informed by the advocate of the Insurance Company. The Appellant was not even aware that the insurance had appointed an advocate who was representing her. 4. The Appellant after she was confronted with the judgement of the trial court dated 29th November 2025 (found at page 24 of the record of appeal), made an application under certificate of urgency found at page 30 of the record of appeal and requested the court to set aside the judgement so that she can be given an opportunity to be heard. 5. In a ruling dated 25th April 2024 (found at page 91 of the record of appeal) the trial magistrate correctly said that the Constitution guarantees the right of every litigant to be heard but again went a head to decline to set aside the judgement despite agreeing that the Appellant had a constitutional right to be heard. Reliance was placed on the decision in the **Supreme Court of Kenya, Petition No. 13 of 2019, Stephen Maina Githiga & 5 others vs Kiru Tea Factory Company Ltd,** the doctrine of fair hearing, Hon. Njoki Ndungu SCJ, considered Petition No. 18, **Evans Odhiambo Kidero & 4 Others vs Ferdinard Waititu & 4 Others, (2024) eKLR** and expounded the right to fair hearing as follows; *"Fair hearing, in principle incorporates the rules of Natural Justice, which includes the concept of* ***audialteram partem*** *(hear the other side or no one is to be condemned unheard) and* ***nemo judex in causa*** *otherwise referred to as the rule of bias. Peter Kaluma, Judicial Review; Law, procedure and practice 2nd edition (Nairobi 2009) at page 195, note that the rules of Natural Justice Generally refer to procedural fairness in decision making. Further he analyses the two mentioned concepts of the rules of natural justice and states at page 176 and 177 that it is the duty of the courts, when dealing with individual cases, to determine whether indeed the rules of natural justice have been violated and noting that "although established, its scope and contents remain unsettled*". 1. That the Supreme Court at page 20 of the said decision continued to highlight as follows; *"1t is important to restate that a literal reading of the provisions of the Constitution show that the right to a fair hearing is broad and includes the concept of the right to a fair trial as it deals with any dispute whether they arise in a judicial or an administrative context. Comparative  experience shows that the European court has elaborated on the question  regarding the scope of the right to a fair trial applying the right in both civil and criminal matters. The European court of Human Rights (European Court) has severally explained that "It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before court".* 1. In the same spirit, in the Court of Appeal, **Civil Appeal No. 20 of 2016, Patrick Guards Ltd vs James Kipchirchir Samba,** while dealing with the doctrine of a fair hearing state at page 6 of this judgement as follows; *"There is no need to restate the importance of a fair trial as guaranteed by the Constitution. The right to a fair trial remains at the heart of any judicial determination and courts should endeavour to protect and uphold the same. It is a cardinal rule and it emanates from the principle of natural justice".* 1. The court continued to state as hereunder in **M**.I**.C vs M.W.M & Another (2015) eKLR** it was restated that; *"The courts of this land have been consistent on the importance of observing the rules of natural justice and in particular hearing a person who is likely to be adversely affected by a decision before the decision is made".* # In **Onyango vs Attorney General (1986-1989) EA 456** Nyarangi, JA asserted at page 459; *"I would say that the principle of Natural Justice applies where ordinary people who would reasonably expect those making decisions which will affect others to act fairly".* # The court further stated that at page 460 that; *"A decision in breach of the rules of Natural Justice is not cured by holding that the decision would otherwise been right if the principle of Natural Justice is violated, it matters not that the same decision would have been arrived at"* 1. The court continued to state in **Mbaki & Another vs. Macharia & Another (2005) 2EA,** at page 210, as follows; *"The right to be heard is a valued right. It would offend all notions of justice if the rights of party were to be prejudiced or affected without the party being afforded an opportunity to be heard"* 1. On ground 2, the Appellant submitted that the advocate for the insurance who was representing the Appellant and the advocate for the Respondent colluded and entered a consent on liability at 85% for the Respondent and 15% for the Appellant. The motor vehicle Reg. No. KCQ 773Y was a truck was doing the business of carrying sand and other materials for construction. The Respondent was not employed by the Appellant which means that he entered into the said motor vehicle without the Appellant's consent. 2. The said truck was not P.S.V vehicle which was carrying passengers. The witness statements of the Appellant and the conductor of the truck have stated correctly that the Respondent was a joyrider in KCQ 773Y and the Appellant was not aware about it. Reliance was placed in High Court of Kenya at Nairobi Civil Appeal No. 260 of 2013, **A.I** **Records Kenya Ltd vs Lavington Security**, the court held; "*Having considered the material placed before this court and the rival submissions, the main issue which commends itself for consideration is  whether the Respondent/Applicant has met the requisite threshold for setting aside consent judgement/order in the case of Brook Bonde Big Ltd vs Anallya (1975) E.A Law. AG president at page 269 stated inter alia".* *"A court cannot interfere with a consent judgement except in such circumstances as would afford a good ground for varying or rescinding a contract between the parties".* 1. The court went ahead and decided as follows; *"The consent was therefore executed based on mistaken belief and or on a misapprehension of material facts. In the circumstances, this court is entitled in law to intervene by setting aside the consent order"* 1. The Appellant submits that the consent on liability was entered without the input of the Appellant. The Respondent has not controverted the assertions that the consent on liability was entered without the Appellant's consent. 2. On ground 3, the Appellant submits that the Respondent lied to the court that he was a fare paying passenger (found at Page 98 of the record of appeal), the plaint states that the Respondent was lawfully travelling as a passenger in motor vehicle Reg. No. KCQ 773Y. 3. That the Appellant at page 39 of the record of appeal has shown the copy of records for her motor vehicle Reg. No. KCQ 773Y, the said motor vehicle is a lorry which carries sand. The Respondent has not stated how he entered into the said motor vehicle without the consent of the Appellant. The said motor vehicle does not carry passengers at all. 4. The Appellant submits that the advocate for the Insurance Company filed a defence purporting that the said motor vehicle was a passenger service vehicle. The advocate had the witness statements of the Appellant and her conductor. The witness statements show clearly that the said motor vehicle KCQ 773Y was a lorry which was carrying sand. 5. Under ground 4, the Appellant submits that she filed her witness statement which she had recorded at the offices of the Insurance Company which witness statement is found at page 45 of the record of appeal. The conductor’s witness statement is found at page 54 of the record of appeal. 6. The conductor of the subject truck lorry, Mr. Augustine Simiyu Mauka has stated clearly that the Respondent was a cousin of the deceased driver Stephen Nganga who was driving the truck lorry on the date of the alleged accident. The Respondent was not an employee of the Appellant but requested his cousin driver to give him a ride without the consent of the Appellant. When all these facts were presented before the trial magistrate, she declined to set aside the judgement. The Appellant urges the court to consider this ground. 7. On ground 5, the Appellant submits that at page 77 to page 90 are the case laws or authorities which the Appellant used in order for the court to set aside the judgement. The authorities presented to court were binding on the Honourable magistrate but she ignored them completely. 8. The Appellant submits that in one of the authorities, in the Court of Appeal at **Nairobi in Civil Application No. 203 of 2016, Intercountries Importers and Exporters Ltd vs Teleposta Pension Scheme and 5 Others** held: *"A consent order will only be set aside if it can be demonstrated that it was procured through fraud, non-disclosure of material facts or mistake or for a reason which would enable a court set it aside"* 1. In the above case, the court went on to state that fraud as one knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his detriment. 2. It was submitted that the advocate for Insurance Company entered a consent on liability at 85% to 15% without the consent of the Appellant. The advocate of the Insurance Company knew very well that the Respondent was not a fare paying passenger in motor vehicle Reg. No. KCQ 773Y. The Insurance Company’s advocate knew that the Respondent entered the said motor vehicle had a driver and conductor and was trading in sand. The Advocate concealed all these material facts from the court. 3. That all what has been highlighted herein above demonstrates that the advocate for the Insurance Company concealed important material facts to the court during the hearing of this case. When the Appellant confronted the court with overwhelming evidence on what transpired, the court declined to consider the evidence. 4. On ground 6, the Appellant submits that she went to the Insurance Company and wrote her witness statement and denied the claim. The advocate of the Insurance Company was aware that the defence she was supposed to mount is that the Respondent was not a fare paying passenger. The advocate went contrary to the statement of the witness and filed a defence showing that the Respondent was a fare paying passenger. 5. The Appellant submits that there is no evidence on record which shows that the Appellant was invited for a hearing. She was shocked to find that the Insurance Company had paid Kshs.3,000,000/= to the Respondent and it asked the Appellant to pay another Kshs.3,000,000/- to the Respondent. That is the time she came to realize that the case was conducted without her knowledge and judgement was delivered thereafter against her. That the trial magistrate agreed in her ruling that the Appellant was never accorded an opportunity to be heard but went ahead to decline the setting aside of the judgement and give the Appellant an opportunity to be heard. 6. The Appellant urges the court to consider this ground which states that the Appellant was never notified of the hearing of her case and allow this appeal. 1. Lastly, on ground 7, the Appellant submits that when she was served with suit papers, she went to the insurance company with her conductor of the subject truck lorry and they both wrote statements which were supposed to be used in this case. The advocate for the Appellant who was given instructions by the insurance company to defend the Appellant refused to file witness statements of the Appellant and her conductor which were very crucial in the case before the magistrate. 2. The Appellant submits that she has demonstrated in her witness statement that her truck lorry herein was doing business of carrying sand and other building materials for her clients. 3. The Appellant has stated further that on 1st September, 2019, her driver, Stephen Nganga (deceased) together with her conduct, Augustine Simiyu passed through her residence and told her that they were going to deliver sand to a client. The Respondent was not in their company when the driver and the conductor went to the Appellant's house. That the witness statement is very much elaborative and the magistrate when she was shown the witness statement of the Appellant, she never commented about it. Had she read the witness statement, she would have set aside her own judgement. 4. The Appellant states that the learned magistrate never considered the witness statement. The statement was written by the conductor states clearly that the Respondent was a friend of the driver who requested to a company him to Kajiado on a joy rider mission. 5. The Appellant submits further that the purpose of the Appellant and her conductor recording their witness statements at the insurance company was meant to be used in court. The Appellant and her conductor have been denied a chance of testifying in court so that they tell the court the truth. The Appellant was to come and demonstrate that the Respondent was not a fare paying passenger in the motor vehicle which carries sand. 6. The Appellant argues that she has demonstrated that she was not given a chance to testify in her own case. She has demonstrated that she doesn't know the Respondent at all. She has demonstrated that she had not employed the Respondent in her motor vehicle. She has also demonstrated that her motor vehicle is not a P.S.V vehicle by filing the copy of records found at page 39 of the record of appeal. 7. Due to the forgoing, the Appellant urges the court to allow this appeal by setting aside the judgement dated 29th November, 2023 and the ruling dated 25th April, 2024 and order for a retrial. **Respondent’s Submissions** 1. It is the Respondent's submissions that the trial court’s findings were justified and should be upheld by this Court. The Respondent framed the following two issues for determination: - 2. *Whether the trial Court erred in dismissing the Appellant's Application seeking to set aside the consent orders.* 3. *What prayers should this Honourable Court grant.* 4. The Respondent referred to the conditions that must be met for setting aside consent orders laid out by the Court of Appeal in the case of **Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR** which are as follows: 5. *That the trial Court acted on wrong principles of the law* 6. *The award was extremely law or high.* 7. *The trial court relied disregarded the facts tendered.* 8. It is the Respondent's submissions that the above stated conditions have not been met and the instant appeal should be dismissed with costs. 9. On the first issue as to whether the trial court erred in dismissing the Appellant's application seeking to set aside the consent orders, it is the Respondent's submissions that the trial court’s finding was justified and should be held by this Court. That when the matter came up for hearing before the trial Court, the Respondent entered into a consent on liability in the ratio of 85%:15% in favour of the Respondent as against the Appellant herein. The Appellant has however deliberately omitted the proceedings of the said consent by failing to attach page 8 of the proceedings between page 11 and 13 of the Record of the Appeal before the matter proceeded for hearing as is evidenced at page 13 of the Record of Appeal. However, this Court can get the same from the original lower court file proceedings and the confirmation by the Appellant's previous Advocate confirming the terms of the consent. 50. That the Respondent at the hearing of the case called two witnesses who testified in support of his case being the Respondent and the Doctor who were only dealing with the issue of the extent of the injuries sustained by the Respondent herein since the issue of liability had already been agreed upon. The Appellant's former Advocate on the other hand informed court that they were not calling any witness and opted to close the Appellant's case at the trial court without any witness testifying. Parties then proceeded to file submissions on quantum only noting the issue of liability had been agreed on. The Court then did a judgment affirming the issue of liability that had been agreed upon by parties 51. The Appellant then instructed the current Advocates to set aside the Judgment of the trial Court by filing an application dated the 15th January, 2024 challenging the consent order entered on liability. 52. The Respondent opposed the said application through a Replying Affidavit confirming that the said consent was adopted without any undue influence and that the Respondent's Insurance Company had even settled part of the decretal sum to a tune of 3,000,000.00/=. 53. It is submitted that the trial Court considered rival submissions by parties and found that Appellant herein had not satisfied the conditions to set aside the consent judgment and dismissed the Application. 54. That in an attempt to frustrate the execution of the said judgment, the Appellant did a letter to their Insurance Company urging them not to make any payments. What is strange is that the date of the said letter which shows to have been done on the 9th January, 2023 before the consent was adopted. What is also strange from the said letter is that the month was fully erased and written January without the maker even complying with the conditions on amendment of documents as exhibited at page 65 and 66 of the Record of Appeal. 55. Further, the year has been amended to hoodwink this Court and the trial court on its contents which should not be entertained at all. There is no evidence that the same was also served upon the Insurance Company. 56. The Respondent states that the Appellant never satisfied the conditions to warrant the grant of the orders sought in their application and it was clear that the same was made with the sole purpose of delaying lawful execution. In any event, the Insurance Company paid the Statutory Limit of Kshs.3,000,000/= and the Appellant herein should be ordered to pay the balance. 57. The Respondent is inviting this Court to be persuaded by the position taken by the High Court in **Re Estate of FKM (Deceased) (Succession Cause 5 of 2017) [2022] KEHC 11905 (KLR) (20 May 2022) (Ruling)** where it held as follows: *"With regard to varying and/or setting aside the consent order, the Court of Appeal in Brooke Bond Liebig (t) Ltd v Mallya Civil Appeal No 18 Of 1975 [19751 EA 266 expressed itself as regards to consent orders and judgments as follows; "Prima facie, any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming under them and cannot be varied or discharged unless obtained by fraud or collusion, or by agreement contrary to the policy of the court or if the consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement. It is well settled that a consent judgement can be set aside only in certain circumstances, e.g. on the ground of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable the court to set aside or rescind a contract."* 58. The Respondent also urges this Court to be persuaded by the position taken by the Environment and Land Court in the case **of Stephen Kibiego Melly & Another v Consolidated Bank of Kenya Limited [2019] eKLR** when it held as follows: *"Courts have taken the position that a consent order is akin to a contract and held that a consent judgment, just like a contract, can only be varied on grounds that would allow a contract to be vitiated."* 59. The Respondent invites this Court to find that the instant appeal is bereft of merits and to proceed to dismiss the same with costs. **Analysis and Determination** 60. As this is a first appeal, this court is called upon to re-evaluate, re-examine and reassess the evidence from the lower court and come up with its own deduction. See **United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd (1985) EA 898**. 61. Having evaluated the grounds of appeal, going through the pleadings, proceedings contained in the Record of Appeal and submissions on the appeal. The singular issue for my determination is w*hether the appeal has merit and what orders should issue.* 62. The appeal arises from the consent order on liability that was recorded before the trial court on 14th September 2023 between the Advocate instructed by the Appellant’s Insurance Company and the Respondent’s Advocate at 80% to 15% against the Appellant and in favour of the Respondent. 63. A summary of the Appellant’s case as submitted herein above is that the Respondent after the motor vehicle was involved in the accident, sued the Appellant and pleaded that he was a fare paying passenger in motor vehicle Reg. No. KCQ 773Y which according to the Appellant carries sand. 64. The Appellant took the pleadings to her Insurance Company and wrote a witness statement together with her driver. She waited to be called-and testify in her case but she was never called. The advocates for the insurance company went ahead to enter consent on liability at 80% to 15% against the Appellant and in favour of the Respondent. The insurance company went a head and paid the statutory limit of Kshs.3,000,000/- to the Respondent and asked the Appellant to pay another Kshs.3,000,000/=. The judgement amount was Kshs.7,953,911/=. 65. The Appellant questioned and still questions how the case proceeded without her knowledge. The Appellant argues that had she testified, liability would have been much lesser than that consented to. 66. The Appellant filed an application dated 15th January, 2024 challenging the consent order entered on liability. However, the trial court upon considering the said application, dismissed the same in a ruling delivered on 25th April 2024. The trial court in dismissing the application stated as follows:- **“[7] I have perused the record which shows that this suit was filed on 28.03.2022 and an amended plaint filed on 22.02.2023. After pre-trial conference was conducted the matter was set down for hearing on 14.09.2023. Come the hearing day the parties recorded consent on liability at the ratio 85: 15 in favour of the plaintiff and the matter proceed for assessment of damages.** **[8] The explanation given by the Applicant is that she was not aware and was not consulted about the consent. However, the Applicant has not persuaded the Court why she failed to follow up on her case even when she knew the matter was in court. Whereas her counsel on record then owed her a duty to inform her on the progress of the matter, the case was still hers and was not her advocate's. What is evident is a party who has been woken up by the execution process and now wants to be heard on her own terms that is to say, as and when it is convenient to her. I am guided by the provisions of Section 1B of the Civil Procedure Act on the overriding objectives of this Court which require the Court to hear matters expeditiously. Allowing this application will be reopening the case on the whims of the defendant. Defendant cannot have her cake and eat it. The Respondent has a judgement which for no other lawful reason is entitled to its fruits and enjoyment.** **[9] I have on the other hand considered if the Applicant has a triable defence. The Applicant is claiming the plaintiff was joy-riding in her vehicle at the time of the accident and she accepts no liability for his alleged injuries. Though prima facie the Applicant has a triable defence, I find that no explanation has been given for her failure to attend Court on the hearing day and to generally follow up her case actively. Her counsel addressed court and informed court that the defendant was not calling evidence. It is the sufficiency explanation that would unlock the flow of discretion in favour of the Applicant.** **[10] Additionally, although the Constitution guarantees the right to be heard, the Applicant had the opportunity to be heard but she did not attend Court for the hearing. The right to be heard does not mean a party will be heard on his/her own terms. If that were to be the case, then the business of the Court would be interrupted at will as and when a party feels like being heard. Once a date has been given and a party fails to appear for the hearing the Court is mandated to proceed with the hearing of the parties that are ready to be heard. Courts time is precious and must be utilized prudently. Needless to say, the Applicant is not without a remedy against her agent for the appropriate action.** **[11] In the end I find that this is a case that does not merit the exercise of the Court's discretion. The motion dated 18.01.2024 is dismissed with no orders as to costs.”** 67. This court’s reading and analysis of the above extract of the ruling, is that the trial magistrate stated that the explanation given by the Applicant was that she was not aware and was not consulted about the consent. However, the Applicant did not persuade the court why she failed to follow up on her case even when she knew the matter was in court. Whereas her counsel on record then owed her a duty to inform her on the progress of the matter, the case was still hers and was not her advocate's. The trial magistrate considered if the Applicant had a triable defence and went ahead to state that the Applicant claimed the Respondent/Plaintiff was joy-riding in her vehicle at the time of the accident and she accepts no liability for his alleged injuries. Though prima facie the Applicant has a triable defence, the trial court found that no explanation had been given for her failure to attend Court on the hearing day and to generally follow up her case actively. Her counsel addressed court and informed court that the Appellant/Defendant was not calling evidence. It is the sufficiency explanation that would unlock the flow of discretion in favour of the Appellant/Defendant. 68. Additionally, the trial court held that although the Constitution guarantees the right to be heard, the Applicant had the opportunity to be heard but she did not attend court for the hearing. The right to be heard does not mean a party will be heard on his/her own terms. If that were to be the case, then the business of the Court would be interrupted at will as and when a party feels like being heard. Once a date has been given and a party fails to appear for the hearing the Court is mandated to proceed with the hearing of the parties that are ready to be heard. 69. On the other hand, the Respondent’s case is that the trial court’s finding in dismissing the Appellant’s application was justified and should be held by this Court. That when the matter came up for hearing before the trial Court, the Respondent entered into a consent on liability in the ratio of 85%:15% in favour of the Respondent as against the Appellant herein. 70. From the foregoing, it is not in dispute that a consent on liability was recorded in the ratio of 85%:15% in favour of the Respondent as against the Appellant. 71. In her ruling, the trial magistrate cited the provisions of **Order 12 Rule 7 of the Civil Procedure Rules** and also referred to the case of **Patel vs. E.A Cargo Handling Services Ltd (1974) EA 75** and **Shah vs Mbogo & Anor (1967) E.A 470 Court of Appeal for Eastern African** which this court notes that applied to setting aside *exparte* judgement which was not the issue before her. The issue for the trial magistrate’s determination was whether the consent on liability could be set aside. 72. This court is of the view that the trial magistrate relied on inapplicable provisions of the law and authorities in respect to the issue at hand in the application that was before her thereby arriving at a wrong decision. 73. The Appellant being a direct party to the suit and therefore likely to be personally affected by its outcome by virtue of being the registered owner of the subject motor vehicle registration number KCQ 773Y which was involved in the alleged accident had a right to be consulted either by her Insurance Company or their instructed Advocate on the consent especially when she had recorded her witness statement and that of her turnboy. The said consent cannot bind the Applicant, or be enforced against her since the Appellant was not party to the consent order. See the case of [**Ismail Sunderji Hirani v Noorali Esmail Kassam**](https://www.academia.edu/36861132/EA_LAW_REPORTS_1957_VOL_1)**[1952] 19 EACA 131** wherethe court outlined the grounds for setting aside consent judgement, decree and orders. 74. Also, in **Brooke Bond Liebig (T) Limited v Mallya (1975) EA 267** the Court of Appeal quoted a passage from Seton on Judgements and Orders 7th Edition Vol.1 page 124, with approval as follows; *''Prima facie, any order made in the presence and with the consent of the counsel is binding on all parties in the proceedings or action, and on those claiming under them ... and cannot be varied of discharged unless obtained by fraud of collusion, or by an agreement contrary to the policy of the court ... or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement.''* 75. The Appellant through her application to set aside the consent on liability was seeking an opportunity to present her case/defence which opportunity was denied by the dismissal of the said application. 76. The Appellant and her conductor were denied a chance of testifying before the trial court so that they tell the court the truth on what happened. The Appellant was to come and demonstrate that the Respondent was not a fare paying passenger in the motor vehicle which carries sand and could be her evidence might have had an impact on liability. 77. There is no evidence to show that the Appellant was involved in the decision to reach and record the consent before the trial court. She never gave her Insurance Company or their advocates instructions to consent to liability. Appellant contends that she was not even aware that her insured had appointed an advocate who was representing her in the case. It is also not denied that indeed the Appellant and her conductor recorded witness statements with her Insurance Company on details surrounding the accident in which liability was denied in toto. 78. The Appellant is now being asked to pay a balance of an outstanding decretal amount of more than Kshs.3,000,000/= and is in imminent risk of facing execution in a suit where she was denied an opportunity to participate in a decision to consent on liability and to present her case. 79. Having found prima facie the Applicant had a triable defence, that the Constitution guarantees the right to be heard and the Appellant having explained the reasons why the consent ought to be set aside, I hold that it was erroneous for the trial magistrate to find that no explanation had been given by the Appellant for her failure to attend court on the hearing day and to generally follow up her case actively and that the Applicant had the opportunity to be heard but she did not attend court for the hearing. This court is guided by the sentiments of Achode JA. (as she then was) in [**PMM V JNW**](https://kenyalaw.org/akn/ke/judgment/kehc/2020/1296)[2020] eKLR as follows; *“This court exists to serve substantive justice for all parties to a dispute before it. Both parties deserve justice and their legitimate expectations is that they will each be allowed a proper opportunity to advance their respective cases upon the merits of the matter. This is the fundamental principle of natural justice”.* 78. In the case of **Patel -v- East Africa Cargo Handling Services [1974] EA 75** it was reiterated that the concern of the courts is to do justice to parties by applying its unfettered discretion. 79. In the case of **Richard Nchapi Leiyagu vs. IEBC & 2 Others** **[2013] eKLR, Mbaki & Others vs. Macharia & Another [2005] 2EA 206;** and the Tanzanian case of **Abbas Sherally & Another vs. Abdul Fazaiboy, Civil** **Application No. 33 of 2003;**it was held *inter alia* that: *(i) the right to a hearing is not only constitutionally entrenched but it is also the corner stone of the Rule of law;* *(ii) the right to be heard is a valued right; and* *(iii) that the right of a party to be heard before adverse action or decision is taken against such a party is so basic that a decision which is arrived at in violation of it will be nullified, even if the same decision would have been reached had the party been heard, because, the violation is considered to be a breach of natural justice;* 80. Also, in the case of [**Wachira Karimi v Bildad Wachira**](https://kenyalaw.org/akn/ke/judgment/kehc/2016/6334)**[2016] eKLR** the court held that a party should not be forced to bear the consequence of his advocate’s default unless the default results from failure on the part of the litigant to give his advocate instructions. 81. In the instant case, the Appellant has stated that her Insurance Company did not notify her that they had appointed an Advocate to represent her in the case and could not have therefore given any instructions to the purported Advocate. 82. On whole, this court finds that the Appellant has demonstrated to the satisfaction of the court that the consent on liability was entered into by mistake, fraud or misrepresentation on the part of the Advocate of her Insurance Company. Further that the Appellant was denied her constitutional right to a fair hearing and an opportunity to present her case/defence which was in breach of the rules of natural justice. 83. The upshot is that the appeal is found to be meritorious and the same is allowed and the court makes the following orders:- 1. **The consent order on liability that was recorded before the trial court on 14th September 2023 between the Advocate instructed by the Appellant’s Insurance Company and the Respondent’s Advocate at 80% to 15% against the Appellant and in favour of the Respondent is set aside.** 2. **The Appellant is allowed to present her evidence in the lower court case being Mavoko CMCC No. 199 of 2022 notwithstanding the part payment of the decretal amount already settled by the Appellant’s Insurance Company herein.** 3. **The same to be heard and determined by any other competent magistrate other than Hon. B. Ojoo, Chief Magistrate.** 4. **Each party to bear own costs of the appeal.** 85. It is so ordered. This file is closed. JUDGEMENT DATED & SIGNED AT MACHAKOS THIS 4TH JUNE 2026 **NOEL ADAGI** **JUDGE** DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 4TH JUNE 2026 In the presence of :- Mr. Moinde for Appellant Ms. Mwende for Respondent Millygrace -Court Assistant