https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10252

Kitale Sacco v Nambuko (Civil Appeal E040 of 2025) [2026] KEHC 10252 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEHC 10252 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E040 of 2025 RK Ondieki, J July 7, 2026 Between Kitale Sacco Appellant and Isaac W nambuko Respondent (Being an Appeal against the Judgment by Hon. W.K. Onkunya in Chief Magistrate’s Court at Kimilili CMCC No. E133 of 2024, Delivered on 14th November, 2025) Judgment 1.I must remark from the outset, that Appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight. Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together. 2.Hereunder, I submit toward the most eloquent jurisprudential decisions, so often repeated, and yet bear repetition from the same family, on the duties of an appellate Court. They include Peters Vs Sunday Post Limited(1958) EA 424, where it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. 3.A Notice of Motion dated 10th December 2026 came before Honourable W.K. Onkunya PM seeking inter alia; that the firm of Jason Kimani & Co Advocates be allowed to come o record for the 2nd defendant in the place of the firm of Bench& Co Advocates, that there be stay of execution of the decree herein pending hearing of this application inter parties, that the honourable court be pleased to review and set aside the Order by consent endorsed by the Court, that the honourable court be pleased to strike out the name of the 2nd defendant/applicant from this suit and that the judgement and decree herein and all then consequential orders be set aside. Upon hearing the application, the learned magistrate made the following orders; “that the 2nd Defendant/Applicant’s Notice of Motion Application dated 10th December 2024, is partially allowed as hereunder; (a) that the firm of Jason Kimani & Co advocates are allowed to come on record for the 2nd Defendant/Applicant in the place of the firm of Bench & Company Advocates (b) that prayers 4, 5 and 6 are declined. (c) that each party to bear their own costs.” 4.The appellant was aggrieved with the findings and proffered an Appeal and the grounds;a.That the learned Trial Magistrate erred in law and fact by finding that the application dated 10th December 2025 lacks merit.b.That the learned Trial Magistrate erred in law and fact in failing to find that the plaint dated 27th May, 2022 is defective since the Motor Vehicle that actually caused the accident is registration number KBV 304Y and not KBV 304T as indicated in the said plaint.c.That the learned Trial Magistrate erred in law and fact by failing to find that the 2nd Defendant was wrongly enjoined in the suit and yet he is not the registered owner of Motor Vehicle KBV 304Y.d.That the learned Trial Magistrate erred in law and fact by failing to find that the 2nd Defendant/Applicant proved the grounds for setting aside the consent orders.e.That the learned Trial Magistrate erred in law and fact in failing to set aside the consent orders dated 6th March, 2024 and 3rd July, 2024.f.That the learned Trial Magistrate erred in law and fact by failing to find that the consent Orders were invalid since they relate to Motor Vehicle Registration Numbers KBV 304T instead of Motor Vehicle registration Number KBV 304Y.g.That the learned Trial Magistrate erred in law and fact IN failing to find that the consents are not enforceable. 5.The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal. Analysis and Determination: 6.This court notes that the appellant settled on 7 grounds for determination. However, looking at the totality of the grounds, I note that the grounds overlap one another and I shall collapse them into two and that is (1)whether or not the consent Orders meet the criterion to set them aside.(2) whether or not, submissions can replace evidence. Criterion for setting aside Consent Judgement: 7.The law on setting aside judgement need not be re-emphasized but here is a summary of grounds on setting aside a consent Judgement;a.Fraud or Misrepresentation: If a consent judgment was obtained through fraudulent means or misrepresentation of material facts, it may be set aside. The party seeking to challenge the judgment must provide evidence of the fraud or misrepresentation.b.Lack of Sufficient Material Facts: If consent was given without knowledge of essential facts, or if the parties were misled about the facts, this can be grounds for setting aside the judgment.c.Duress or Coercion: If a party was forced or coerced into agreeing to the consent judgment, this can also be a valid reason for setting it aside.d.Mutual Mistake of Fact: If both parties entered into the consent judgment under a mutual mistake regarding a fundamental fact, this may provide grounds for setting it aside.e.Lack of Authority: If the consent judgment was signed by a party who did not have the authority to do so, it may be challenged. 8.The factual matrix by the Appellant, were that the suit Motor Vehicle is not registered in his name. Whereas the Registered Owner of Motor Vehicle number KBV 304T is Momentum Credit Limited and Anthony Otieno, the Registered Owner of Motor Vehicle Number KBV 304V is one Japhet Onyango Osumba. Pellucidly, these are two different Motor vehicles registered in the names of two parties, to which no rebuttal has been made by the Respondent. 9.Many are the decisions which set the law on consent judgement, I shall sample some decisions to have handle over the matter. In the case of Brooke Bond Liebig (T) Limited vs Mallya [1975] E.A. 266, Law JA, stated that the circumstances in which a consent judgment may be interfered with were considered by this court in Hirani Vs Kassam (1952), 19EACA 131, where the following passage from Seton on Judgments and Orders, 7th edition, Vol. 1 page 124 that 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 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. 10.In Flora Wasike Vs Destimo Wamboko (1988)1 KAR 625, Hancox JA (as he then was) said in his judgment at page 626 that it is now settled law that a consent judgement 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. 11.In the Supreme Court Practice 1979 (Vol.2) paragraph 2013 page 620 said that a solicitor has a general authority to compromise on behalf of his client, if he acts bona fide and not contrary to express negative direction; and it would seem that a solicitor acting as agent for the principal solicitor has the same power (Re Newen, [1903] 1 Ch pp 817,818; Little vs Spreadbury, [1910]2 KB 658). No limitation of the implied authority avails the client as against the other side unless such limitation has been brought to their notice-see Welsh Vs Roe [1918 - (9] All E.R Rep 620. 12.The Court of Appeal adopted the judgment of Harris J. R in the case of Kenya Commercial Bank Ltd Vs Specialised Engineering Co. Ltd (1982) KLR P. 485 and held that a consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or by an agreement contrary to the Policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement. 13.From the sampled decisions, there are exceptions when the principles are negated, which now entitle the court to interfere with a consent judgement. More importantly, it is trite judicial practice, that each case is determined on its own circumstances, context and touch, premised on the facts as they present themselves. 14.The fact that the suit Motor Vehicle is at the centre of the consent judgement, it was not only fair to interrogate it, but also, a need to delve into how the alleged consent came by. This is where the trial magistrate ought to have made a determination of soundness of the consent following the appellant’s lamentation. Written submissions in place of evidence: 15.At the plenary hearing, the Appellant and the Respondent were represented by counsel who opted to rely on the written submissions on record. The Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Murithi & Anor, (2014) eKLR emphasized this point and held that “submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented” 16.The Respondent ought to have led evidence to establish the registered owner of the suit motor vehicle that caused an accident and the witness be cross examined in the normal manner for the court to arrive at a just decision. 17.The upshot is that the impugned ruling of the trial magistrate is hereby set aside. The Notice of Motion dated 10th December, 2024, is hereby allowed as prayed. Costs to the appellant. JUDGEMENT DELIVERED IN COURT VIRTUALLY IN THE PRESENCE OF THE PARTIES AND CHRISTINE-COURT ASSISTANT THIS 7TH JULY, 2026.HON. R.K. ONDIEKI.JUDGE.