https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3126

Metioni aka Reuben v Mwashinga (Environment and Land Appeal E003 of 2026) [2026] KEELC 3126 (KLR) (Environment and Land) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3126 (KLR) Republic of Kenya In the Environment and Land Court at Voi Environment and Land Environment and Land Appeal E003 of 2026 EK Wabwoto, J May 21, 2026 Between Mzee Metioni aka Reuben Appellant and Gaspery Nyange Mwashinga Respondent Ruling 1.Before this Court is a Notice of Motion Application dated 13th April 2026 brought by the Appellant/Applicant, Mzee Metioni a.k.a Reuben, under Order 45 Rule 1, Section 80 of the Civil Procedure Rules, Order 42 and Order 40 Section 3 & 3A of the Civil Procedure Rules and all other enabling provisions of the Law. The application seeks the following orders:1.Spent…2.That this Honourable Court be pleased to issue a temporary injunction against the Respondent, his agents restraining them from implementing the terms of the consent order entered or issued on the 16th March 2026.3.That this Honourable Court be pleased to set aside/vary or review the consent order recorded on 16th March 2026.4.That this Honourable Court be pleased to grant leave to the Appellant/Applicant to file his appeal out of time.5.That upon granting Prayer No. 4 above, this Honourable Court do direct that the appeal filed herein on 3rd February 2026 is properly filed before this Honourable Court.6.Any other relief this Honourable Court may deem fit to grant in the circumstances.7.That costs of this application be provided for. 2.The application is supported by a Supporting Affidavit sworn by the Applicant, Reuben Mzee Metioni, on 13th April 2026, in which he deposes, inter alia, that:Judgment in the lower court in ELC Case No. E011 of 2022 was delivered on 11th December 2025 and was against him, whereupon he immediately instructed his then Advocate to file an appeal. His Advocate filed the appeal dated 3rd February 2026 on 4th February 2026 without leave of this Court.On 16th March 2026, he was surprised to learn that a consent order had been entered without his knowledge or consent and without his being informed of its terms and hee wants the consent order set aside/varied/reviewed, contending that he has an appeal with high chances of success, that a mistake of his former Advocate cannot be visited upon him, that he filed the application without undue delay, and that the Respondent will not suffer any prejudice if the orders are granted. 3.The Respondent, Gaspery Nyange Mwashinga, filed a Replying Affidavit sworn by Advocate Mwazighe Micar on 15th April 2026 opposing the application. The Respondent further filed written submissions dated 21st April 2026. 4.The Respondent's case in summary is that the application is an abuse of court process and is misplaced. The Respondent avers that the Applicant expressly admits the appeal was filed out of time without leave of court, and that the correct procedure was to file a standalone application in an ELC Miscellaneous file seeking leave to appeal out of time. The Respondent further contends that the Applicant has not supplied sufficient evidence to justify varying or setting aside the consent order entered on 16th March 2026, and that the Applicant has not demonstrated any grounds sufficient to warrant such an order. It is the Respondent's position that the application should be dismissed with costs. 5.This Court notes that while the Respondent duly filed written submissions, the Applicant/Appellant did not file any written submissions despite having been granted an opportunity to do so. This Court is, however, not absolved of its obligation to consider the application on its merits and to make a determination based on the application, affidavits and other materials placed before it. As was observed in various decisions of this Court and superior courts, justice requires that a court consider all material placed before it, regardless of whether submissions have been filed by all parties. The Court shall accordingly proceed to determine this matter on the basis of the filed application, the Supporting Affidavit of the Applicant, the Replying Affidavit of the Respondent, the Respondent's written submissions, and the applicable law. Analysis and determination 6.Having considered the pleadings and affidavits filed herein together with the Respondent’s written submissions, the Court identifies the following issues for determination:i.Whether the consent order recorded on 16th March 2026 should be set aside.ii.Whether leave should be granted to the Applicant to file an appeal out of time, and whether the appeal already filed on 3rd February 2026 should be deemed as properly filed.iii.Who should bear the costs of this application. Issue 1: Whether the consent order recorded on 16th march 2026 should be set aside 7.A consent order is a solemn record of a binding agreement between parties, and the law is settled that such an order is not lightly disturbed. The Court of Appeal in Flora Wasike v Wamboko [1982-88] 1 KA 625, as adopted and applied in Lawrence Kinyua Mwai v Nyaringinu Farmers Co. Ltd & Another, Civil Suit No. 120 of 1988, set out the conditions under which a consent order may be set aside 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 an 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." 8.This statement of the law has been consistently affirmed by the courts. In Kenya Commercial Bank Ltd v Specialised Engineering Company Ltd (1982) KLR 485, Harris J. stated 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, collusion, 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. This position was recently affirmed by the Environment and Land Court in Kimeu v Kyunguti & 4 others; Matata & another (Interested Parties) (Environment & Land Case 18 of 2019) [2025] KEELC 1170 (KLR) (13 March 2025). 9.The Applicant's case for setting aside the consent order rests primarily on the assertion that the consent was entered into without his knowledge or consent and behind his back. He deposes that on 16th March 2026, he was surprised to learn that a consent order had been entered between his then Advocate and Advocate Mwazighe, without his being informed of its terms. He further contends that a mistake of his former Advocate cannot be visited upon him as an innocent litigant. 10.The Respondent, on the other hand, contends that the Applicant has not proved that the consent was obtained by fraud or collusion, or by an agreement contrary to the policy of the court. It is submitted that the Applicant's then Advocate was present in court and well aware of the legal implications of adopting the consent, and that no evidence has been tabled to show that the consent was entered behind the Applicant's back. 11.The Court has carefully examined the material placed before it. Conspicuously, the Applicant has not filed any written submissions to demonstrate, with specificity, which of the recognized grounds for setting aside a consent order are applicable to his case. The Supporting Affidavit makes bare assertions that the consent was entered without his knowledge, but no documentary evidence such as correspondence with his former Advocate, instructions given or refused, or any record of the events leading to the consent has been placed before the Court to corroborate these assertions. 12.The law is clear that bare allegations, however sympathetically viewed, do not suffice to impugn a consent order. An advocate ordinarily has ostensible and implied authority to compromise and settle litigation on behalf of his client, and a client who wishes to challenge such a compromise bears a heavy burden to demonstrate that the consent falls within one of the recognized exceptions. As was stated in Kenya Commercial Bank Ltd v Specialised Engineering Company Ltd (Supra), a consent order is not to be lightly set aside, and the marking of a consent order by the court is done on the basis that the parties, through their advocates, fully understand the meaning of the order. 13.The Applicant has neither pleaded nor proved fraud, collusion, misrepresentation, or that the consent was contrary to public policy. The assertion that a mistake of counsel should not be visited upon a litigant, while a well-established equitable principle, does not by itself constitute a sufficient basis to set aside a consent order. Such a principle is more apposite in the context of procedural defaults, such as missing filing deadlines, rather than in the context of impeaching a substantive agreement recorded as a consent order of court. In the present case, the Court is not satisfied that the Applicant has met the threshold required to set aside the consent order recorded on 16th March 2026. 14.Accordingly, and in the absence of evidence establishing fraud, collusion, misapprehension of material facts, or agreement contrary to the policy of the court, the Court finds that the prayer to set aside the consent order cannot succeed. Prayer No. 3 of the application is therefore declined. Issue 2: Whether leave should be granted to file the appeal out of time 15.It is common ground between the parties, and indeed expressly admitted by the Applicant, that the appeal filed on 3rd February 2026 was filed out of time and without leave of this Court. Section 79G of the Civil Procedure Act provides that every appeal from a subordinate court to the High Court shall be filed within a period of thirty (30) days from the date of the decree or order appealed against, and that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 16.The principles applicable to an application for extension of time to file an appeal are well settled in Kenyan jurisprudence. The Supreme Court in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others [2014] KESC 12 (KLR) enumerated the guiding principles as follows: that extension of time is not a right of a party but an equitable remedy available only to a deserving party at the court's discretion; that the applicant bears the burden of laying a satisfactory basis for the request; that the court's exercise of discretion is case-specific; that there must be a reasonable explanation for the delay; that the court must consider whether the respondent will suffer prejudice if extension is granted; and that the application must have been brought without undue delay. The Court of Appeal similarly affirmed these principles in Paul Musili Wambua v Attorney General & 2 Others [2015] eKLR, emphasizing the factors of the length of delay, reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the respondent. 17.A further and threshold issue arises in this matter. The Respondent correctly raises in its submissions that the proper procedure where a party seeks to appeal out of time is to first file a standalone application in this case an ELC Miscellaneous seeking leave to file the appeal out of time, and only upon the grant of such leave to then file the appeal. The Applicant instead filed the appeal on 3rd February 2026 without any prior or concurrent leave of court, and now seeks to regularize the filing retrospectively by having it deemed as properly filed. 18.In Salat v IEBC (Supra), the Supreme Court was emphatic that filing an appeal out of time without first seeking extension of time, and subsequently asking the court to extend time and recognise such a filing, is tantamount to moving the court to remedy an illegality which the court cannot do. The court stated that such a document is unknown in law, and that where one intends to file an appeal out of time, the proper course is to annex a draft intended petition of appeal for the court's perusal when making an application for extension of time, and not to file the appeal and seek to legalize it. This reasoning, though arising from a Supreme Court context, is equally applicable in principle to the present matter. 19.Additionally, this Court notes that a substantive obstacle confronts the Applicant's bid for leave to file an appeal out of time. The consent order of 16th March 2026 has been upheld by this Court and remains in force. The Respondent correctly submits that once a matter has been concluded by a consent order, the court is, in a significant sense, functus officio with respect to the original appeal proceedings. The Applicant's quest to have the appeal admitted and prosecuted must necessarily contend with the fact that the dispute has, on the record, been resolved by consent of counsel. Having found that the consent order cannot be set aside, the very subject matter upon which the appeal is premised the lower court's judgment of 11th December 2025must be understood in the context of the subsequent settlement. 20.Even if the Court were to overlook the procedural impropriety of the appeal having been filed without prior leave, the Applicant's Supporting Affidavit does not, in the Court's assessment, lay a sufficiently detailed and satisfactory basis for the grant of leave. The Applicant attributes the out-of-time filing to a mistake of his former Advocate, without elaborating on the specific circumstances of that default, or explaining why the Advocate filed the appeal without leave rather than first seeking leave. No documentary evidence such as instructions to the former Advocate, correspondence, or any record of the Advocate's conduct has been produced. While the principle that a mistake of counsel should not be visited upon an innocent litigant is a well-established equitable maxim, it cannot be invoked as a blanket shield in every case of counsel default; the applicant must still demonstrate the factual basis for invoking it. 21.Furthermore, there is no evidence before the Court regarding the merits of the intended appeal beyond the bare assertion in paragraph 8 of the Supporting Affidavit that "I have an appeal which has high chances of success." No draft memorandum of appeal has been annexed, nor has any substantive basis for the appeal been articulated, which would have enabled the Court to assess whether the appeal discloses a prima facie case with reasonable prospects of success one of the material considerations in an application for extension of time. 22.For all the foregoing reasons, the Court finds that the Applicant has not satisfied the threshold for the grant of leave to file his appeal out of time, and that the appeal filed on 3rd February 2026 cannot be regularised or deemed as properly filed. Prayers No. 4 and 5 of the application are accordingly declined. 23.In the same breath, and given the findings above, Prayer No. 2 seeking a temporary injunction restraining the Respondent from implementing the terms of the consent order equally fails. An injunction of the nature sought is an interlocutory remedy ordinarily ancillary to a substantive right that is being asserted. Since the Court has declined to set aside the consent order and declined to admit the out-of-time appeal, there is no pending substantive right to anchor the injunction. Prayer No. 2 accordingly fails. Issue 3: Costs 24.The matter of costs is governed by Section 27(1) of the Civil Procedure Act, which provides that costs of and incidental to all suits shall be in the discretion of the court or judge, and that costs shall follow the event unless the court for good reason otherwise directs. In considering the circumstances of this case, the Court is of the view that it would be just and equitable to depart from the general rule and to direct that each party bears their own costs of this application. Final orders 27.In the result, and for all the reasons set out above, the Court makes the following orders:i.The Notice of Motion Application dated 13th April 2026 is hereby dismissed in its entirety.ii.Each party shall bear their own costs of this application. DATED, SIGNED AND DELIVERED AT VOI THIS 21ST DAY OF MAY 2026.E.K. WABWOTOJUDGEIn the presence of:N/A for Appellant/ApplicantMr. Mwazighe for RespondentCourt Assistants: Mary Ngoira and David Ngoosa.