Kolile v Equity Bank (K) Ltd & another (Environment and Land Case 615 of 2023) [2026] KEELC 4046 (KLR) (2 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT NAKURU** **ELC NO. 615 OF 2023** **NATHAN MUTUA KOLILE.…………………..………………………..PLAINTIFF** **VERSUS** **EQUITY BANK (K) LIMITED……….……………………………...1ST DEFENDANT STEPHEN NZULA MULI** **T/A GENERATION HIGHWAY** **ENTERPRISES..................................................................................2ND DEFFENDANT** **RULING** 1. This ruling is in respect of the application dated 17th November, 2025 by the 1st Defendant/Applicant seeking the following orders: 2. ***Spent.*** 3. ***Spent.*** 4. ***THAT the Honourable court be pleased to review, vary and/or set aside the orders of 3rd November, 2025, together with the consequential orders arising therefrom.*** 5. ***THAT this Honourable Court be pleased to review, vary and/or set aside the consent order dated 26th September, 2024, together with all the consequential orders arising therefrom.*** 6. ***THAT the costs of this application be provided for.*** 7. The application is grounded on the supporting affidavit of Beatrice Muraguri, 1st Defendant/Applicant’s Legal Officer, who deponed that on 29th June, 2022, the court delivered its judgment and subsequently, on 23rd November, 2023, the Plaintiff/Respondent filed an application for contempt where the court directed the 1st Applicant to furnish the Respondent with a tabulation of the sums owed. 8. She further deponed that the Applicant complied with the orders and on 19th September, 2024, when the matter came up for directions, counsel for the 1st Applicant, unaware that judgment had already been delivered, recorded a consent with fresh obligations. Further, the Applicant stated that the consent included filing of documents, appointment of an auditor, and the 1st Applicant meeting the audit costs. 9. The Applicant further deponed that the said obligations did not form part of the judgment but were introduced through an impugned consent; thus, a fundamental mistake. As a result, the court issued orders directing the 1st Applicant’s Branch Manager to personally attend court for alleged non-compliance. 10. According to the deponent, the consent order exposed the 1st Applicant to unwarranted prejudice and that the Respondent failed to disclose that the matter had been concluded vide a final judgment thus amounting to material non-disclosure. She stated that the consent order was irregular and unless the orders of 3rd November, 2025, are stayed and the consent set aside, the 1st Applicant will suffer irreparable prejudice including unwarranted personal exposure of its officer, and urged the court to allow the application with costs. **RESPONDENT’S RESPONSE** 1. The Respondent filed his replying affidavit sworn on 5th March, 2026, where he averred that the order dated 19th September, 2024, was made pursuant to a consent entered by all parties. He further deponed that the present application was filed after a delay of more than a year from the date of the consent, thus unjustified. He added that the consent pertained to the audit of the loan account in implementation of the judgment, coupled with the ruling delivered on 16th July, 2024. 2. It was the Respondent’s case that an audit of the loan account became necessary following the 1st Applicant’s failure to comply with the terms of the judgment on computation of the amount due from the Respondent within the stipulated timelines. He further stated that the consent order neither introduced new obligations nor varied the judgment, and that the same had been partially implemented since the Interest Rates Advisory Center Limited agreed to do the audit of the loan subject to payment of their fees. 3. The Respondent also denied any material mistake of fact in recording the consent order or that the 1st Applicant’s advocate was unaware of the judgment, as the firm of Mburu Maina & Company Advocates on record for the 1st Applicant has actively participated in the case and therefore there was no fraud or mistake, hence it is binding on the parties. **APPLICANT’S FURTHER AFFIDAVIT** 1. The 1st Applicant, in response to the Respondent’s Replying Affidavit filed a further affidavit dated 10th April, 2026, where she corrected an error in her supporting affidavit which interchanged the marking of annexures BM-2 and BM-3. 2. She stated that the 1st Applicant fully complied with the court's judgment and subsequent ruling by officially forwarding the tabulation directing the Respondent to pay a computed sum of Kshs 2,000,000, which the Plaintiff/Respondent failed to pay and has instead engaged the Bank and the Court in unending mentions and applications to avoid compliance with the judgment. She further denied that the consent order had been partially implemented, as they had not consented to the appointment of an Auditor. 3. It was her case that once the court delivered its judgment, it became *functus officio* and hence has no jurisdiction to entertain any post-judgment applications, mentions, or hearings. She stated that any post-judgment actions should only be limited to the execution of the judgment, which is the function of the Deputy Registrar, and urged the court to allow the application as prayed. **APPLICANT’S SUBMISSIONS** 1. Counsel for the Applicant identified one issue for determination, as to whether the consent order entered into on 19th September, 2024 together with all the consequential orders arising therefrom, should be set aside, and submitted that the order was irregular and should be set aside since judgment had already been delivered in the matter, rendering the court *functus officio*. 2. He further submitted that the court had no jurisdiction to entertain post-judgment applications or mentions except for execution, and that a consent order cannot override or vary a final judgment unless obtained through a formal review or appeal. 1. It is counsel’s submission that the 1st Applicant had complied with the ruling through its computation and notification of the Respondent of the sum payable hence the consent ought to be set aside. Further, the scope of the court’s direction was specific to a period of 90 days and therefore the same did not require parties to update the court whether there was progress as regards compliance and cited the cases of **Raila Odinga V IEBC & 3 Others [2013] eKLR** and Samuel **M. N. Mweru & Others V National Land Commission & 2 Others [2020] eKLR,** and urged the court to allow the application with costs. **RESPONDENT’S SUBMISSIONS** 1. Counsel submitted that the 1st Applicant failed to implement the terms of the judgment/decree dated 29th June, 2022 within the prescribed timelines of three (3) months, and as a consequence, the Respondent filed the application dated 23rd November, 2023 being contempt proceedings against the 1st Applicant. 2. He further submitted that on 16th July, 2024 the court ordered the 1st Applicant to implement the judgment within thirty (30) days, which it never complied with and that on 19th September, 2024, the parties through their advocates recorded a consent order. 3. Mr. Njuguna submitted that the 1st Applicant’s advocate, who purportedly was unaware of the judgment did not swear an affidavit to verify or support the allegation and relied on **Order 19 Rule 3 (I) of the Civil Procedure Rules**. Counsel also stated that the firm of Mburu Maina & Company Advocates filed a Notice of Change of Advocates dated 23rd January, 2024 to act for the 1st Applicant herein in place of the firm of Ikua Mwangi & Company Advocates, who subsequently attended court and actively participated in the proceedings including its response and submissions opposing the Respondent’s contempt application dated 23rd November, 2023. 4. According to counsel, the application was filed after a delay of more than one year from the date the consent order was entered, which delay has not been explained, and relied on Order 45 Rule 1 of the Civil Procedure Rules and submitted that the application did not meet threshold for setting aside a consent order. 5. Mr. Njuguna further submitted that the consent order was to ensure the implementation of the judgment through the audit of the loan account and did not create or establish new obligations on the part of the 1st Applicant as alleged, and urged the court to dismiss the application with costs. **ANALYSIS AND DETERMINATION** 1. The issues for determination are whether the court should set aside/vary /review the consent order entered into on 19th September, the order dated 3rd November, 2025. 2. It was the 1st Applicant’s case that its advocate mistakenly entered into a consent agreement without the knowledge that the matter had already been finalized vide the court’s judgment dated 29th June, 2022, and further argued that the court became *functus officio* having already rendered its judgment and therefore the consent was irregularly entered into. 3. The Respondent on the other hand contends that the consent was as a result of the 1st Applicant’s failure to implement the terms of the judgment/decree dated 29th June, 2022 within the prescribed timelines of three (3) months. Further, the 1st Applicant’s counsel was fully aware of the judgment and also actively participated in the matter including the contempt proceedings up until the consent was recorded. 4. The law on setting aside a consent judgment is as set out in the case of **Brook Bond Liebig (T) Limited vs MALLYA [1975] E.A where** the court held that: ***"The circumstances in which a consent judgment may be interfered with were considered by this court in Hirani vs Kassam [1952], 19 E.A.C.A 131, where the following passage from Seton of judgments and Orders, 7th Edition, Vol. I,p. 124 was approved:- "Prima facie, any order made 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" 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"*** 1. Similarly in the case of **Board of Trustees National Social Security Fund V Michael Mwalo [2015] KECA 782 (KLR)**,the court held as follows: ***“A Court of law will not interfere with a consent judgment except in circumstances such as would provide a good ground for varying or rescinding a contract between parties. To impeach a consent order or a consent judgment, it must be shown that it was obtained by fraud, or collusion or by an agreement contrary to the policy of the Court”*** 1. It is on record and not in dispute that the firm of Mburu Maina & Company Advocates filed a Notice of Change of Advocates dated 23rd January, 2024, to formally come on record for the 1st Applicant. Ms. Ekesa, an Advocate from the said firm appeared in court and had the authority to act on behalf of the 1st Applicant including recording the consent entered into on 19th September, 2024. The court proceedings speak for themselves. 2. The reasons being advanced by counsel for the Applicant, at this juncture that they were not aware that there was a judgment borders on selective amnesia. What was counsel coming on record to do for the Applicant in this case if he was not aware that a judgment had been delivered, why did counsel enter into a consent on the implementation of the judgment after filing a response to the contempt application? 3. Counsel are officers of the court and should not give such outrageous reasons to try to circumvent the implementation of a judgment. This, *in stricto sensu* would amount to negligence on the part of counsel where a very fundamental detail of the proceedings is not given the attention as required. When taking up a matter, counsel must peruse the file and know the status of the case to enable such counsel give proper legal advice. I find that counsel was aware that a judgment had been delivered in this case, and what was remaining was the implementation of the order as per the Judgment. The reasoning in the application is therefore an afterthought. 4. Further, there was no evidence that the consent order was entered into through fraud, misrepresentation, mistake, or coercion, hence, the consent order was proper. 5. Counsel for the 1st Applicant, vide its further affidavit, shifted its argument to the fact that the court was *functus officio*, having already delivered its judgment, thus lacking jurisdiction to issue further orders. The court has the power to record a post-judgment consent, which is made with the concurrence of all the parties on the specific details of the implementation of the judgment. The consent order entered into by the parties is mutually binding. The court’s duty is to record what the parties have agreed upon so long as it is not repugnant to justice and morality and within the law. The court also still possess/retains residual jurisdiction to ensure implementation of decrees or settlements. If parties enter into a consent or settlement and one party breaches its terms, the non-breaching party can seek enforcement or compliance in court. 6. In the instant case, the judgment of the court as delivered needed to be fully realized through compliance of the directions of prayers (b) and (c) culminating, into the consent being recorded by the parties. 7. The Applicant also participated in the proceedings and, the consent order implementation for over one year, and later thought of filing this current application. The delay in filing the application has not been explained. Litigation must end at some point. 8. I have considered the Application, the responses, submissions by counsel and the relevant authorities, and find that the application dated 17th November, 2025, is without merit and is hereby dismissed with costs to the Respondent. **DATED, SIGNED AND DELIVERED AT NAKURU THIS 2ND DAY OF JULY 2026.** **M. A. ODENY** **JUDGE**