https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4007

Ole Karia v Ole Keshe (Environment and Land Appeal E006 of 2023) [2026] KEELC 4007 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 4007 (KLR) Republic of Kenya In the Environment and Land Court at Narok Environment and Land Appeal E006 of 2023 LN Gacheru, J June 29, 2026 Between Nteto Ole Karia Applicant and Musua Ole Keshe Respondent Ruling 1.The matter coming up for determination is the Appellant/Applicant’s Notice of Motion Application dated 18th November 2025, which is brought pursuant to Sections 1A, 1B, 3 and 3A of the Civil Procedure Act, Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Articles 48 and 50 of the Constitution of Kenya and all other enabling provisions of the law, wherein the Appellant/Applicant has sought for the following Orders:1.Spent.2.That the Applicant be granted leave to deposit the title deed for parcel number Cismara/nkoben/1624 in court as security for costs pursuant to the court’s orders for stay of execution issued on 5th November 2025.3.That the Honourable Court do deem the deposit of the said title as sufficient compliance with the conditions for stay of execution as earlier directed.4.That such other orders be made as the court deems just. 2.The instant Application is supported by the grounds set out on the face of the Application, and on the Supporting Affidavit sworn by Nteto Ole Karia, the Applicant herein, on even date. 3.The grounds in support are; that pursuant to a consent entered by parties’ Advocates, the court granted an order of stay of execution on the condition that the Appellant/ Applicant provides security for costs by depositing a sum of Kshs. 606,947/= into a joint account by the Advocates. 4.That the Applicant was unable to raise the requisite sum within the stipulated period of 14 days; that he is ready, willing and able to comply with the court orders and has consequently made arrangements to deposit the original title deed for parcel number Cismara/nkobeni/1624, as security in lieu of the cash deposit. 5.That the said property is registered in the name of the Applicant’s biological son, and that its value is sufficient value to satisfy the security threshold as ordered; That unless the court grants leave to deposit the title deed as security, the Applicant risks losing the granted stay leading to substantial loss as the Respondent has already instructed an auctioneer, and has had the Appellant’s livestock already proclaimed; and that it is in the interest of justice that the Applicant be allowed to deposit the title deed as security without delay. 6.In his Supporting Affidavit, the Applicant reiterated the grounds in support of the Application and prayed that the court allows the Application. 7.The Respondent, vide a Replying Affidavit sworn on 20th November 2025, opposed the instant Application. He deposed that the Applicant’s inability to raise the decretal sum of Kshs. 606,947/= was not a recognized legal ground for varying or setting aside a consent order. 8.He contended that the consent recorded on 5th November 2025 was binding upon the parties, and could only be interfered with on established grounds such as fraud, mistake, misrepresentation, collusion, or any other factor that would vitiate a contract, none of which had been pleaded or proved by the Applicant. 9.The Respondent further averred that the Applicant’s proposal to substitute the monetary security ordered by the Court with a title deed registered in the name of his son was untenable since the consent expressly required a cash deposit into a joint interest-earning account. He maintained that a valuation report could not replace the certainty and liquidity of a monetary deposit and that the Applicant could not unilaterally alter the form of security agreed upon and adopted by the Court. 10.It was his further averment that any prejudice alleged by the Applicant was self-inflicted, having arisen from his own failure to comply with the consent terms within the stipulated period. He asserted that the proclamation of the Applicant’s livestock was a lawful consequence of that default and could not constitute a basis for varying the consent. He also argued that the Applicant’s undertaking not to encumber the property offered as security was irrelevant since the consent required cash security rather than land. 11.The Respondent emphasized that the consent order was clear, unequivocal, and binding and that permitting its variation merely because compliance had become difficult would undermine the finality and certainty of court-sanctioned agreements. He relied on Flora N. Wasike v Destimo Wamboko [1985] KECA 149 (KLR), Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266 at 269, Hirani v Kassam (1952) 19 EACA 131, J.M. Mwakio v Kenya Commercial Bank Ltd, Civil Appeal Nos. 28 of 1982 and 19 of 1983, and Kenya Commercial Bank Ltd v Specialized Engineering Co. Ltd [1982] KLR, to support the proposition that a consent judgment may only be set aside on limited and exceptional grounds. 12.He further contended that granting the application would be contrary to the overriding objective under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(b) of the Constitution, as it would reward non-compliance, occasion delay, and prejudice the Respondent who had already suffered hardship through the delayed realization of the decretal amount. According to the Respondent, the Applicant’s conduct amounted to an abuse of the court process aimed at delaying execution while offering uncertain and inadequate security. 13.Consequently, the Respondent urged the Court to find that the Applicant had failed to establish any legal basis for varying the consent order, dismiss the application in its entirety. 14.The Application was canvassed by way of written submissions. The Appellant/Applicant filed his Written Submissions dated 5th February 2026, through Karia Kipkosgei & Co Advocates, wherein he raised one issue for determination; whether this Court should exercise its discretion to allow the Applicant to deposit a title deed as security in substitution of the cash deposit earlier ordered. 15.The Appellant/ Applicant submitted that he had demonstrated sufficient cause for variation of the security order as he was unable to raise the cash security ordered by the Court within the prescribed period, despite making efforts to comply with the Court’s directions. 16.He further submitted that the proposed alternative security was adequate and sufficient, and offered to deposit the original title deed for Land Parcel No. CIS Mara/nkoben/1624, which was said to have sufficient value to secure the decretal amount, and adequately protect the Respondent’s interests. 17.Further, he submitted that the application was made in good faith and without undue delay. The Applicant also argued that he had approached the Court promptly and had exhibited willingness to comply with the conditions for stay of execution. 18.It was the Applicant’s further submissions that the substantial loss would be suffered if the application was declined; that the Respondent had already commenced execution proceedings, including instructing auctioneers and proclaiming the Applicant’s livestock, exposing the Applicant to the risk of irreparable loss. 19.He also submitted that it is in the interests of justice that the court allows the application. Relying on Article 159(2)(d) of the Constitution, the Applicant argued that the Court should administer justice substantively rather than technically and the court should not deny the Applicant an opportunity to provide alternative security merely because he was unable to furnish cash security. 20.Further, that the Respondent would suffer no prejudice; that the Respondent’s interests would remain fully protected by the deposited title deed, whereas refusal of the application would occasion significant hardship to the him. 21.Accordingly, the Applicant prayed that the Court allow the application, grant leave to deposit the original title deed for Land Parcel No. CIS Mara/nkoben/1624 in place of the cash deposit ordered by the Court, and issue any further orders deemed just and expedient. 22.The Respondent filed his written submissions dated 13th March 2026, through Tanyassis Lemein & Co Advocates, wherein he raised the following issues for determination:a.Whether this Honourable Court has discretion to vary or rewrite the consent order freely entered into by the parties.b.Whether the present Application amounts to abuse of the court process. 23.On whether this Court has discretion to vary or rewrite the consent order freely entered into by the parties, the Respondent submitted that although the court possessed discretion under Order 42 Rule 6(2) of the Civil Procedure Rules in matters relating to security for stay, such discretion could not be exercised to rewrite a consent order or alter contractual obligations voluntarily undertaken by parties. 24.Reliance was placed on Butt v Rent Restriction Tribunal [1982] KLR, Arun C Sharma v Ashana Raikundalia t/a Raikundalia & Co. Advocates [2014] eKLR and Westmont Holdings SDN BHD v Central Bank of Kenya & 2 Others [2023] KESC 11 (KLR) to argue that security must be adequate, protective and enforceable. 25.The Respondent further submitted that consent orders have contractual effect and can only be set aside on grounds that would vitiate a contract, such as fraud, mistake, collusion or misrepresentation. He also relied on Flora N. Wasike v Destimo Wamboko [1988] eKLR and Brooke Bond Liebig v Mallya [1975] EA 266, and argued that none of the recognized grounds for setting aside a consent order had been pleaded or proved by the Appellant. He also cited the case of National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd [2001] eKLR for the proposition that courts cannot rewrite contracts freely entered into by parties. 26.On the issue of abuse of the court process, the Respondent submitted that the Appellant/ Applicant had knowingly agreed to deposit the decretal sum as security, but later returned to court seeking to substitute the agreed security with property belonging to a third party. 27.Further, that the application amounted to a collateral attack on a valid court order, and was intended to delay execution and deny the Respondent the fruits of his judgment. Reliance was placed on Muchanga Investments Ltd v Safaris Unlimited (Africa) Ltd & 2 Others [2009] eKLR, where abuse of process was described as the improper use of judicial machinery to achieve unjust ends. 28.The Respondent argued that the Appellant’s conduct demonstrated inconsistency, bad faith and an attempt to prolong litigation. He urged the court to uphold the sanctity of consent orders, find that the application constituted an abuse of the court process, dismiss the application with costs, and enforce the consent order recorded on 5th November 2025, as binding upon the parties. 29.He further submitted that the Appellant’s application dated 18th November 2025, was misconceived and ought to be dismissed; that the parties had voluntarily entered into a consent order on 5th November 2025, under which the Appellant/Applicant was required to deposit Kshs. 606,947/= in a joint account within fourteen days as security for stay of execution; and that the consent was clear, unequivocal and binding upon the parties, and its terms had not been imposed upon the Appellant/ Applicant, but were mutually agreed upon and adopted as an order of the court. 30.The Respondent urged this Court to dismiss the Applicant’s Notice of Motion Application dated 18th November 2025, with costs; and uphold and enforce the consent order recorded on 5th November 2025 as binding upon parties. 31.The court has carefully considered the instant Notice of Motion Application, the Affidavits on record, the rival written submissions, the applicable law, and finds the issue arising for determination is whether the Appellant/Applicant has established a sufficient basis for this Court to permit the deposit of a title deed in substitution of the cash security agreed upon and ordered by consent on 5th November 2025. 32.It is not disputed that on 5th November 2025 the parties, through their respective advocates, recorded a consent before this Court under which the Appellant/Applicant was granted stay of execution on condition that he deposits a sum of Kshs. 606,947/= in a joint account operated by the advocates for the parties within fourteen days. The Appellant/Applicant now seeks leave to substitute that form of security with a title deed relating to parcel number Cis Mara/nkoben/1624. 33.The law regarding consent orders is well settled. A consent order has contractual effect and is binding upon the parties unless it is shown that it was obtained through fraud, collusion, mistake, misrepresentation, or any other circumstance that would justify the setting aside of a contract. In Flora N. Wasike v Destimo Wamboko [1988] eKLR, the Court of Appeal reiterated the principle that a consent judgment can only be interfered with on grounds that would vitiate a contract. 34.Similarly, in Brooke Bond Liebig (T) Ltd v Mallya [1975] EA 266, the Court held that a consent judgment can only be set aside on grounds such as fraud, collusion, or any reason that would enable a court to set aside an agreement. 35.In the instant case, the Appellant/ Applicant has not alleged fraud, mistake, coercion, misrepresentation, or any other factor that would vitiate the consent recorded on 5th November 2025. His main reason for seeking variation is that he has been unable to raise the sum agreed upon within the stipulated period. While the Court appreciates the financial difficulties that litigants may encounter, inability to comply with a consent order does not, by itself, constitute a legal ground for varying or setting aside such an order. 36.The Court further notes that the security proposed by the Appellant/Applicant is not property registered in his own name, but in the name of his biological son, who is not a party to these proceedings. No evidence has been placed before the Court to demonstrate that the registered proprietor has formally consented to the use of the property as security for the decretal sum. Even if such consent had been furnished, the proposed security would still be materially different from the form of security expressly agreed upon by the parties. 37.The rationale behind requiring a cash deposit in a joint account is to provide readily realizable and certain security pending the determination of the appeal. A title deed, unlike a cash deposit, may necessitate further processes before realization, and may be subject to disputes regarding ownership, valuation, encumbrances, or enforceability. Consequently, the proposed substitution does not offer the same degree of certainty and protection contemplated by the consent order. 38.The Appellant/ Applicant urged the Court to invoke Article 159 of the Constitution and exercise its discretion in the interests of substantive justice. While this Court is obligated to administer justice without undue regard to procedural technicalities, Article 159 is not a basis for disregarding valid and binding agreements freely entered into by parties. Courts must equally uphold the principles of certainty, finality, and sanctity of consensual orders. 39.Having carefully considered the available submissions and having held as above, this court is persuaded by the Respondent’s argument that granting the orders sought would effectively amount to rewriting the consent recorded by the parties. The Court cannot substitute the parties’ bargain merely because compliance has become difficult for one party. 40.In the circumstances, this court finds and hold that the Appellant/Applicant has failed to establish any legal or factual basis upon which the consent order of 5th November 2025, may be varied. The application is devoid of merit, and its thus disallowed. 41.Consequently, the instant Notice of Motion Application dated 18th November 2025, is hereby dismissed with costs to the Respondent. 42.For avoidance of doubt, the consent order recorded on 5th November 2025, shall remain in force and binding upon the parties unless otherwise lawfully varied or set aside.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAROK THIS 29TH DAY OF JUNE 2026.L. GACHERU JUDGEDelivered Online in the presence of:Elijah Meyoki – Court AssistantNo appearance for the Appellant/ApplicantMr Tanyasis for the defendantL. GACHERUJUDGE