https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4323

Kemama & another (Suing as Personal Representative of the Estate of Amadeo Raymond Kemama - Deceased) v Guangxi Hydroelectric Construction Bureau Kenya Ltd (Environment and Land Case E001 of 2024) [2026] KEELC 4323 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 4323 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Case E001 of 2024 JO Mboya, J June 29, 2026 Between Kenneth Muriuki Kemama 1st Plaintiff Anthony Roy Kemama 2nd Plaintiff Suing as Personal Representative of the Estate of Amadeo Raymond Kemama - Deceased and Guangxi Hydroelectric Construction Bureau Kenya Ltd Respondent Ruling 1.Before me is the Notice of Motion Application dated the 11.06.2026; brought pursuant to the provisions of Sections 1 A, 1B and 3 A of the Civil Procedure Act, chapter 21 Laws of Kenya; Order 25 Rule 5; and order 51 rule 1 of the Civil Procedure Rules, 2010; and Articles 159 and 168 of the Constitution, 2010; and wherein the Plaintiffs/Applicants [herein after referred to as the Applicants] have sought various reliefs. 2.The reliefs sought vide the subject Application are:i.………………………………………………..……………..Spent.ii.That the Honourable court be pleased to review its ruling entered into consent on 24.03.2026 setting aside the interlocutory judgment delivered on 06.11.2025, in favour of the plaintiff.iii.That on setting aside the ruling of 24.03.2026, the honorable court be pleased to reinstate the interlocutory judgment delivered on the 06.11.2025.iv.That the cost of this Application be provided for. 3.The instant application is premised on various grounds. The grounds are: The Applicants filed the subject suit and thereafter duly served the Defendant/Respondent; the Defendant/Respondent failed to enter appearance and file a statement of defence; subsequently the suit was heard culminating into a Judgment; upon the delivery of the Judgment, the defendant filed an application to set aside the default Judgment; the application to set aside the default judgment was duly opposed vide replying affidavit sworn on the 23.03.2026; and the Applicants intimated their position as pertains to the said application for setting aside the default Judgment. 4.Additionally, the Applicants have posited that: The application to set aside the exparte/default judgment came up for hearing on the 26.03.2026; the Applicants were duly represented by an Advocate, namely, Mr. Motende Atenga; the named advocate did not have express instructions of the Plaintiffs to enter into any consent; the named advocate proceeded to and entered into a consent setting aside the default/exparte Judgment; the consent was entered into in the absence of express instructions; the consent in question is vitiated by lack of instructions; and the Applicants did not authorize the impugned consent. 5.Furthermore, the Applicants have contended thus: The Applicants had filed a replying affidavit sworn on the 23.03.2026; the contents of paragraphs 22 and 24 of the replying affidavit contained express instructions to the advocates; the advocate was not at liberty to act contrary to and in contravention of the express instructions; the consent was entered into without knowledge of the material facts attendant to the matter; and the consent is thus void. 6.The application is supported by the supporting affidavit sworn on the 11.06.2026 and wherein Kenneth Muriuki Kemama [the deponent] has reiterated the contents of the grounds enumerated in the body of the application. In addition, the deponent has annexed two [2] sets of documents, including: copies of communication between the deponent and the senior administrator at the law firm of Ms. Ombati, Otieno and Opondo Advocates. 7.The Respondent opposed the application vide replying affidavit sworn on the 19.06.2026. The deponent of the replying affidavit has highlighted various issues. The issues include: The previous advocate[s] acted within his lawful instructions; an advocate is deemed to have implied authority to act on behalf of the client; the Applicants have not established that the actions complained of were taken in contravention of any express instructions; no evidence has been placed before the court to denote express instructions that were given to the previous counsel; and the Applicants have not established the requisite grounds to warrant the setting aside review and or variation of the consent. 8.Moreover, it has been posited thus: The Applicants herein had raised a similar application on the 28.05.2026; the previous application was premised on variation of the consent on the basis of [sic] non-payment of the thrown away costs; the previous application was dispensed with upon proof of payment[s] of thrown away costs; and the subject application is therefore barred by the doctrine of res judicata; and by extension Section 7 of the Civil Procedure Act, Chapter 21, Laws of Kenya. 9.The Application came up for hearing today [the 29.06.2026] whereupon the advocates for the parties intimated to the court that same were ready to proceed with the hearing. In addition, both counsel agreed to canvass and dispose of the application by way of oral submissions. The submissions are on record. 10.Learned counsel for the Applicants adopted the grounds contained at the foot of the application; reiterated the averments in the body of the supporting affidavit and thereafter highlighted two [2] key issues. The issues are: The Applicants have established and proven a basis to warrant the setting aside/variation of the impugned consent; and the consent under reference was entered into contrary to express instructions of the Client [The Applicants]. 11.Regarding the first issue, learned counsel for the Applicants has submitted that upon being served with the application seeking the setting aside of the exparte/default Judgment [erroneously referred to as interlocutory Judgment] the Applicants filed a replying affidavit sworn on the 23.03.2026; and wherein the Applicants opposed the named application. In particular, it was submitted that Applicants were only amenable to the setting aside of the default Judgment, if and only if, the defendant was amenable to deposit the decretal sum in an Escrow account. 12.It was the further submission by learned counsel for the Applicants that barring the contents of paragraph 22 and 24 of the replying affidavit sworn on the 23.03.2026, the previous counsel did not have any express instruction[s] to enter into and or execute a consent on behalf of the Applicants. To this end, it has been submitted that the impugned consent was entered into in excess of the authority of counsel and, therefore in contravention of express instructions. 13.Additionally, it was submitted that the previous counsel who appeared before the court was not familiar with the facts of the matter. On the contrary, it has been submitted that the said counsel was merely holding brief for the counsel on record and thus same [counsel holding brief] was not knowledgeable of the material facts. In this regard, it has been contended that the impugned consent was entered into without knowledge of the material facts and hence the consent is vitiated. 14.Learned counsel for the Applicants has thereafter cited and referenced various decisions to buttress the submissions to the effect that the consent is vitiated by want of material facts and lack of instructions. The cases are: Flora N Wasike versus Destimo Wamboko [1988] eKLR; Atogo versus Wambui [2025] KECA; and Kenya Commercial Bank Limited versus Specialized Engineering Limited [1982] eKLR, respectively. 15.Flowing from the foregoing, learned counsel for the Applicants has thereafter invited the court to find and hold that the application for setting aside the impugned consent is meritorious. In this regard, the court has been implored to allow the application; review the impugned consent; and reinstate the exparte/default judgment [erroneously referred to as the interlocutory judgment]. 16.Learned counsel for the Respondent adopted the contents of the replying affidavit sworn on the 19.06.2026 and thereafter highlighted three [3] key issues. The issues are: The application to set aside the consent judgment is barred by the doctrine of res judicata; the Applicants have not established or demonstrated a basis to warrant the setting aside of the consent; and no material/evidence has been placed before the court to demonstrate that the advocates acted in excess of his instructions while entering into the impugned consent. 17.With regard to the first issue, learned counsel of the Respondent has submitted that the Applicants herein had raised and canvassed an application to set aside the consent on the 28.05.2026. In particular, it was submitted that the previous application for setting aside the impugned consent was made orally and that same was underpinned by the ground that the thrown away costs had not been paid. Nevertheless, counsel submitted that the application under reference was dispensed with, upon proof that the thrown away costs had been paid. 18.Premised on the foregoing submissions, learned counsel for the Respondent has invited the court to find and hold that the current application is prohibited by the doctrine of res judicata and by extension, Section 7 of the Civil Procedure Act, chapter 21 Laws of Kenya. 19.Secondly, counsel for the Respondent has submitted that the Applicants have not placed before the court any evidence or material to demonstrate that the previous counsel, who participated in the entry of the consent, acted contrary to and in contravention of express instructions or otherwise. In the absence of evidence/material to that effect, it has been submitted that the application is premised on bare assertions, devoid of justification or at all. 20.Thirdly, it has been submitted that the contention that the previous counsel acted without instructions needed to have been verified by some documents in writing. However, it has been posited that no such documents have been placed before the court. 21.Finally, learned counsel for the Respondent has submitted that the Applicants herein have neither established nor demonstrated the requisite grounds to warrant setting aside the consent. Furthermore, it has been submitted that a consent order can only be set aside on circumscribed grounds, like the ones that underpin the setting aside of a contract. 22.In the premises, learned counsel for the Respondent has invited the court to find and hold that the application by/on behalf of the Applicants, is bereft of merits and thus same ought to be dismissed. To this end, learned counsel has implored the court to dismiss the application and to award costs to the Respondent. 23.Having reviewed the application; the supporting affidavit thereto; the replying affidavit in opposition; and upon taking into account the submissions by/on behalf of the respective counsel, three [3] key issues crystalize for consideration and determination. The issues are: Whether the subject application is barred by the doctrine of res judicata and by extension the provisions of Sections 7 of the Civil Procedure Act, Chapter 21, Laws of Kenya or otherwise; whether the Applicants has met/satisfied the threshold for review of a consent order or otherwise; and What reliefs ought to issue in the circumstance[s]. 24.Before venturing to the address the issues, which have been isolated in the preceding paragraph, it is important to clarify one aspect of the application, which has occasioned a bit of confusion. The aspect touches on the setting aside of [sic] the interlocutory judgment vide the consent and by extension the reinstatement of [sic] the interlocutory judgment. I wish to state that the subject matter proceeded for hearing vide formal proof culminating into an exparte/default judgment rendered on the 06.11.2025. The judgment in question was not an interlocutory judgment in terms of the provisions of Order 10 Rules 2, 3 and 4 of the Civil Procedure Rules, 2010. 25.Additionally, it is important to underscore that there is a distinction between an interlocutory judgement, which is interim in nature and awaits formal proof, and a default/exparte judgment. Suffice it to state that the latter does accrue upon hearing vide formal proof and same is therefore final in nature. On the contrary, an interlocutory judgment is not final and must await formal proof, so as to make same final. 26.It was necessary to make the foregoing clarification because learned counsel for the Applicants seems to suggest that the judgment that was set aside vide the consent was [sic] an interlocutory judgment, which is not the case. For good measure, the impugned judgment was a final judgment arising out of a hearing by way of formal proof. 27.Back to the issues highlighted for consideration. The first issue touches on whether or not the subject application is barred by the doctrine of res judicata or otherwise. It is worthy to recall that learned counsel for the Respondent submitted that the Applicants herein had previously made an oral application seeking review and setting aside [sic] the consent. In particular, it was contended that the oral application for setting aside the consent was made/canvassed on the 28.05.2026. 28.Furthermore, learned counsel submitted that the Applicants had sought to set aside the consent on the basis that the thrown away costs, which were captured at the foot of the consent, had not been paid. However, counsel posited that the application [oral application] was dispensed with upon proof that the thrown away costs had been paid. 29.I beg to point out that no application for setting aside or review of the consent was mounted or canvassed by the Applicants herein on the 28.05.2026. The record of the court shows that learned counsel for the Applicants brought to the attention of the court that the Respondent had not paid the costs and thus a fundamental limb of the consent had been breached. 30.Nevertheless, the Respondent herein demonstrated that same had indeed paid the thrown away costs to and in favour of the counsel on record. To this end, the debate on whether or not the thrown away costs had been paid was marked as settled. For good measure, there were no arguments made before the court touching on and concerning the setting aside of the consent. 31.Moreover, it is crystal clear that this court has never entertained or adjudicated upon any previous application for review or setting aside of the consent order entered into and endorsed on the court record on the 24.03.2026. 32.I am afraid that the arguments touching on and concerning the plea of res judicata, have been mounted and canvassed on the basis of misapprehension. In particular, learned counsel for the Respondent did not correctly appreciate the ingredients underpinning the plea of res judicata in terms of Section 7 of the Civil Procedure Act, Chapter 21 Laws of Kenya. 33.Before concluding on this issue, it is imperative to reference the holding in the case of Independent Electoral and Boundaries Commission v Kiai & 5 others [2017] KECA 477 (KLR), where the court of appeal highlighted the key components of the doctrine of res judicata. 34.The court stated thus:74.Thus, for the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must all be satisfied, as they are rendered not in disjunctive, but conjunctive terms;(a)The suit or issue was directly and substantially in issue in the former suit.(b)That former suit was between the same parties or parties under whom they or any of them claim.(c)Those parties were litigating under the same title.(d)The issue was heard and finally determined in the former suit.(e)The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised. 35.Next is the issue as to whether the Applicants’ have established/proven the requisite grounds to warrant the setting aside/review of the impugned consent? To start with, it is common ground that a consent order or judgment can only be set aside on similar grounds that would warrant the setting aside of a contract. The grounds include: fraud; misrepresentation; deceit; and mistake which goes to the root of the impugned consent. Furthermore, a consent judgment can also be set aside if same [Consent] is proven to be immoral and contrary to public policy. 36.The law as pertains to setting aside of consent is now settled. In the case of Wasike v Wamboko [1985] KECA 149 (KLR). The Court of appeal stated thus:“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 an agreement contrary to the policy of the court ...; or if the consent was given without sufficient material facts, or in general for a reason which would enable the court to set aside an agreement.” 8.This passage was followed by the same court in Brooke Bond Liebig Ltd v Mallya [1975] EA 266 at 269 in which Law Ag P said:“A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.” 37.The Applicants have posited that the counsel who entered into consent did not have express instructions to do so. Moreover, it has been contended that the said counsel acted in contravention of [sic]express instructions, which are indicated to have been contained vide paragraphs 22 and 24 of the replying affidavit sworn on the 23.03.2026. The said paragraphs are indicated to have only allowed counsel to enter into a consent to set aside the default judgment, if and only if, the decretal sum was to be deposited in an escrow account. 38.Furthermore, it has been posited that the previous counsel who entered into the impugned consent was not seized of all the material facts, attendant to the case and therefore the impugned consent was entered into without knowledge of material facts. Insofar as the consent was entered into without knowledge of the material facts, it has been contended that the impugned consent is therefore vitiated and void. 39.I have reviewed the supporting affidavit underpinning the subject application; the contents of paragraph 22 and 24 of the replying affidavit sworn on the 23.03.2026; and the submissions by learned counsel for the Applicants. I beg to state that I have not discerned any ground that comes close to the circumscribed grounds to warrant setting aside a consent. Quite clearly, the Applicants have not proven fraud, misrepresentation, deceit, mistake, immorality or illegality, which are the established grounds that can warrant impugning a consent. 40.Regarding the contention that the previous counsel acted without express instructions or in contravention of express instructions, I wish to state that the contents of paragraphs 22 and 24 of the replying affidavit, which have been referenced by the Applicants, clearly show that the Applicants had granted express authority to counsel to concede the application for setting aside. The only issue, relates to and concerns the condition that the Applicants were seeking to attach to the setting aside. The Applicants had sought to have the decretal sum deposited in an escrow account. 41.My reading of the paragraphs that have been adverted to, drive me to the conclusion that in principle, and as a matter of fact, the Applicants were amenable to the setting aside of the exparte judgment. Consequently, it cannot now be contended that the previous counsel acted contrary to the express instructions, either in the manner posited or at all. 42.Moreover, it is not lost on me that an advocate has express and implied authority to act on behalf of a client and to do that which in the eyes of the law, is not only reasonable but lawful. What was before the court then was an application seeking to set aside an exparte judgment and to afford the Respondent herein an opportunity to be heard in line with the provisions of Article 50 [1] of the Constitution, 2010. 43.To my mind, and considering the obtaining jurisprudence as pertains to setting aside of regular judgments, the consent by and on behalf of the previous counsel cannot be deemed to be vitiated by any illegality or misrepresentation. On the contrary, the obtaining circumstances clearly show that the learned counsel acted within his implied authority and based on the clear concession contained in the body of the replying affidavit that had been filed on behalf of the Applicants. 44.Next is the aspect of lack of knowledge of the material facts, surrounding and or pertaining to the application for setting aside, which birthed the impugned consent. Learned counsel for the Applicants has submitted that the previous counsel who attended court and participated in the recording of the consent, did not have knowledge of material facts pertaining to the matter and therefore the impugned consent was entered into without knowledge of facts critical and pertinent to the matter. 45.In particular, it has been submitted that the counsel who attended court was only instructed to hold brief for Mr. Ombati Advocate, who was the counsel on record. To this end, it has been posited that the counsel who attended court was therefore not appraised of all the facts. Moreover, it has been submitted that if the counsel who attended court was conversant with the matter, including the contents of paragraphs 22 and 24 of the replying affidavit, same would not have entered into the impugned consent. 46.Be that as it may, there is no gainsaying that the counsel who attended court was instructed and deputized to hold brief for Mr. Ombati Advocate. The import and tenor of holding brief denotes that the counsel in question had been sufficiently instructed and appraised of the facts of the matter. It can not now lie in the mouth of the current advocate to contend that the erstwhile advocate was not conversant with the facts of the matter. Suffice it to state that the said assertions have not been justified or substantiated. 47.I wish to state that other than the bare and generalised assertions that have been made, namely; that the erstwhile advocate was not fully appraised of the material facts, it has not been clarified as to which facts, if any, were not known to or within the knowledge of the erstwhile advocate. It is not enough for an omnibus or vague allegation[s] to be made without any effort to substantiate same. In any event, it is common ground that the Applicants bore the burden of substantiating the assertions. 48.In my humble view, and having interrogated the averments at the foot of the affidavit in support of the subject application and having taken into account the submissions by learned counsel for the Applicants, I am unable to discern the material facts, which were [sic] not within the knowledge of the erstwhile advocate. 49.Moreover, it is not lost on me that not being aware of [sic] material facts attendant to a particular matter, does not constitute or amount to misrepresentation or mistake, to warrant impugning a consent order. Simply put, the assertions at the foot of the supporting affidavit fall short of the threshold for setting aside a consent order. 50.I now wish to turn to the third issue, namely; what reliefs ought to issue. Learned counsel for the Applicants invited the court to allow the application and to grant the various reliefs sought at the foot of the instant application. For good measure, the reliefs under reference have been reproduced elsewhere hereinbefore. 51.Notably, the Applicants have sought the review of the impugned consent and the reinstatement of [sic] the interlocutory judgment delivered on the 06.11.2025. However, learned counsel for the Applicants has not gone further and addressed the question of the statement of defence that was filed subsequent to the endorsement of the consent. The counsel has not informed the court what will happen to the statement of defence, which was lawfully filed pursuant to the consent order; and which currently, forms part of the record of the Court. 52.In answer to a question from the court as to what shall become of the statement of defence and the reply to the statement of defence, the latter which was filed by the Plaintiffs, learned counsel contended that the court can invoke and deploy the inherent jurisdiction and thereafter expunge the statement of defence. 53.I beg to state that the inherent jurisdiction of the court cannot be invoked and deployed to deal with or address a situation that is expressly provided for under the law. Instructively, it was incumbent upon the Applicants to implead the requisite reliefs and thereafter make submissions to persuade the court to grant the reliefs. However, the Applicants cannot seek to call in aid the inherent jurisdiction of the court to cure a lapse, or failure, in their pleadings. 54.In the case Wilfred N. Konosi t/a Konosi & Co. Advocates v Flamco Limited [2017] KECA 431 (KLR), the Court of Appeal highlighted the legal position that the inherent jurisdiction cannot be deployed where there exist express provisions under the law. 55.The court stated thus:“It was held in Taparn vs Roitei [1968] EA 618 that inherent jurisdiction should not be invoked where there is specific statutory provision to meet the case.” 56.I am afraid that the invitation to the deploy the inherent jurisdiction of the court to [sic] expunge the statement of defence from the record cannot be countenanced. It suffices to reiterate that a court of law can only grant a relief or prayer, which has been expressly sought. [See the holding in the case of Emuria v Sambu & 2 others [2025] KECA 1033 (KLR) ]. 57.The other aspect that merits consideration relates to the absurdity that may arise, if the subject application is allowed. I have pointed out that the application seeks the setting aside of the impugned consent and reinstatement of [sic] the judgment. However, it bears repeating that the consent under reference has since been perfected and consummated. In particular, the defendant herein has since filed and served a statement of defence. Moreover, the defendant has also paid the thrown away costs which were ordered. 58.The absurdity touches on the reinstatement[sic] the judgment on the face of the statement of defence on record. Can an exparte judgment subsists side by side with a statement of defence? Quite clearly, such a scenario is unfathomable. One would have to strike out the statement of defence and thereafter enter judgment. But no judgment can be entered or [sic] be reinstated on the face of a standing defence. 59.Flowing from the foregoing, it must have become apparent that the orders sought by /on behalf of the Applicants, are clearly untenable. Suffice it to state that a court of law cannot be the citadel of injustice. A court of law cannot venture forward and issue orders that are incompatible and inherently, contradictory. Conclusion 60.It is the Applicants’ who had approached the court contending that the impugned consent was entered into without express instructions by the Applicants; and without knowledge of material facts. In this regard, it behooved the Applicants to substantiate the assertions. It was not enough to throw vague; generalized; and omnibus allegations onto the face of the court and expect the court to take the allegations at face value. 61.Additionally, the Applicants knew that a consent can only be set aside on circumscribed grounds. Moreover, it is common ground that the grounds for which a consent can be set aside mirror the grounds for setting aside a contract. The Applicants therefore ought to have established the circumscribed and known grounds. 62.Furthermore, it is important to underscore that the orders that were sought by the Applicants, were bound to culminate into an absurdity in the eyes of the law. There is no way an ex-parte Judgment can [sic] be reinstated on the face of standing statement of defence. Final orders 63.As a result of the foregoing, it is apparent that the subject application is bereft of merits. The application courts dismissal. In the premises, the final orders that commend themselves to the court are:i.The Application dated 11.06.2026 be and is hereby Dismissed.ii.Each party shall bear own costs of the application. 64.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 29TH JUNE, 2026.OGUTTU MBOYA; FCIArb; CPM [MTI-EA].JUDGE.In the presence of:Court Assistant: ZakayoMr. Morgan Mwenda for the Plaintiffs/ApplicantsMr. Emmanuel Eredi for the Defendant/Respondent.