https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7986

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NUMBER **E008** OF 2022 ALBERT MWANGI MATHANGANI…………………………...APPELLANT VERSUS ANGELINA KANYI MUINDE (Suing as the wife/widow and Legal Representative/Administrator of the estate of Joseph Muinde (Deceased)) ………………………………….....RESPONDENT ***(Being an appeal from ruling and orders of Hon. Eric Musambai Analo (Deputy Registrar) dated 23rd December 2021 in Machakos High Court civil suit number 5 of 2017)*** **JUDGMENT** The appellant was the 2nd defendant in this court’s civil case number 5 of 2017. On 3-11-2020, the parties through their advocates recorded a consent which was endorsed and adopted by Honourable Justice G.V. Odunga (as he then was) in the following terms; 1. *Judgment is hereby entered in favour of the plaintiff against the 2nd and 3rd defendants in the sum of Kshs 6.5 million all inclusive.* 2. *That the suit against the 1st defendant is hereby marked as withdrawn.* 3. *Each party to bear own costs.* 4. *There be a stay of execution for 30 days.* As it would appear from the proceedings, the 2nd and 3rd defendants did not settle the decretal sum. By an application dated 16th August 2021, the appellant prayed for a substantive order among others that the Honourable court do issue an order declaring that the 2nd defendant (now the appellant) had duly satisfied his part of the decretal debt. In his affidavit in support of the application, the appellant deponed that the motor vehicle which had caused the accident which was the cause of action in the suit had been insured by Xplico Insurance Company Limited (hereinafter referred to as ‘Xplico’). He added that during the pendency of the suit, he was invited and participated in negotiations which resulted to the agreement on settlement of the matter out of the court hence the consent. The appellant claimed further that while reaching the consent, there was an agreement between the parties that he would personally pay Kshs 3,000,000.00 and Xplico pay the difference of Kshs 3,500,000.00 with him paying his part within twenty four months. The appellant added that after the consent, he was involved in an accident making him unable to meet his part of the consent in consequence of which he made proposal to pay Kshs 300,000.00 immediately and the balance of Kshs 2,400,000.00 in six months but before he could pay the first installment, his lorry registration number KBY 855G was attached in execution of the decree which pressurised him to pay Kshs 500,000.00 despite which the respondent’s advocates declined to release the lorry leading to it being auctioned on 23rd April 2021. The appellant averred further that his lorry was valued at Kshs 2,900,000.00 for purposes of insurance although he had bought it at Kshs 2,950,000.00. According to him, the amount he paid in cash plus the value of the sold lorry translated to payment of Kshs 3,400,000.00 towards liquidation of the decretal sum which was in excess of his share. He added that, despite this, the respondent was pursuing him with a notice to show cause for Kshs 4,869,870.00. He therefore urged the court to order that the respondent should pursue Xplico for the balance of Kshs 3,500,000.00. In opposing the application, the respondent averred through a replying affidavit sworn on 3rd September 2021 that Xplico could not be compelled to pay any part of the decretal sum as it was not a party to the proceedings. She denied that there was any agreement between the parties for part payment of the decretal sum in installments and that motor vehicle registration number KBY 855G was attached in execution of lawful court warrants. She admitted having received Kshs 500,000.00 from the appellant and on request of the appellant and with her concurrence, her advocates withheld any further action for ten days but even before the ten days grace period was over, the appellant moved the court vide another application dated 4-05-2021 which application was never prosecuted. The motor vehicle was therefore advertised and sold to the highest bidder one Alex Kyangu Mbuvi at Kshs 1,300,000.00 from which the auctioneers deducted their costs of Kshs 167,920.00. This left the decretal sum outstanding at Kshs 4,867,920.00. On 18-08-2021, the Honourable Justice G.V. Odunga ordered that the application being one involving execution of decree be heard by the Deputy Registrar. The Honourable E.M. Analo eventually heard the application and by ruling dated 23rd December 2021 found no merits in it and dismissed it with costs which prompted this appeal in which the appellant has raised the following grounds; 1. THAT the learned Deputy Registrar misapplied and misapprehended the legal principles in respect of the notice of motion application dated 16th August 2021 and hence reached the wrong decision. 2. THAT the ruling of the learned Deputy Registrar was against the evidence, the record of the court and the facts before him. 3. THAT the learned Deputy Registrar misdirected himself by considering extraneous matters that were not before him. 4. THAT the learned Deputy Registrar failed to make a determination on the legal issues that were before him. 5. THAT the learned Deputy Registrar misdirected himself in law and failed to take into consideration relevant matters and hence arrived as a wrong decision. 6. THAT the learned Deputy Registrar erred in finding that the application before him lacked merit. The appeal was disposed of by way of written submissions. I have read the appellant’s submissions dated 16th July 2025 and those of the respondent dated 17th November 2025. Having done so alongside the memorandum of appeal, I discern that the only issue for determination is whether the appellant had proved that he had satisfied the decree in the High Court civil case number 5 of 2017. It is common ground that the judgment in the said suit was entered by consent of the parties and the same has never been set aside, reviewed or varied. The point of departure between the parties is whether the appellant was to satisfy the full decretal amount or Kshs 3,000,000.00. There is no difficulty in interpreting the terms of the consent which were clear. In the terms of the consent, there was no mention of Xplico as the insurer of the appellant’s vehicle or it having an obligation to settle any part of the decretal sum. It was not a party to the suit and there was no enforceable judgment or order against it. A court cannot issue execution against a person who is not a party to the suit. Execution of a binding consent judgment is never dependent on how or the path or method the parties used in arriving at the same. A court cannot be asked to go back to the method or terms of negotiations unless the same are mentioned in the consents as part of the final terms. Whether the parties agreed that part of the decretal sum would be paid by Xplico or not is not a concern of the court as it was not mentioned anywhere in the recorded consent. In that regard, I do not see the merits of the argument that the appellant was bound to pay Kshs 3,000,000.00 only. The late Honourable Justice D.S. Majanja restated the finality of a consent judgment when he held in ***E.T. v Attorney General & another [2012] KEHC 5506 (KLR)*** that *‘A consent judgment is a judgment whose terms are settled and agreed to by the parties and having been sanctioned by the court, the consent has the effect of*res judicata *in respect of the matters dealt and it is this respect I shall consider the matter.’* Even if we were to assume that the appellant was bound to pay Kshs 3,000,000.00 only, I am not satisfied that the same has been paid. In his own words and admission, the appellant paid Kshs 500,000.00 only. His argument that his auctioned lorry was valued at Kshs 2,900,000.00 or Kshs 2,950,000.00 does not hold water and is not relevant in taking accounts of what has been paid and what is pending. The position is that the same was auctioned at Kshs 1,300,000.00 with Kshs 167,920.00 going towards the execution expenses and Kshs 1,132,080.00 towards liquidation of the decretal sum. There is no law that requires sale of assets in execution of a court judgement be sold at a reserve price. The appellant did not challenge the legality, the process or procedure of the sale or even attempted to call for accounts. The total of the amount paid by the appellant and that realised from the sale left Kshs 4,867,920.00 pending and in the circumstances, the respondent had the right in the law to execute for the balance until the whole decretal sum is paid or the judgment is otherwise varied or set aside. The inevitable conclusion herein is that this appeal lacks merits and the same is dismissed with costs to the respondent. Dated signed and delivered at Nairobi this **5th** day of **June** 2026. **B.M. MUSYOKI** **JUDGE OF THE HIGH COURT.** Judgment delivered in presence of Mr. Ngaira for the appellant and Mr. Mwanthi for the respondent.