https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1029

Olympic Trading Company Limited v Basabra (The administrator of the Estate of the Late Said Omar Mohamed Basabra) & 3 others (Civil Appeal (Application) E718 of 2024) [2026] KECA 1029 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECA 1029 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal (Application) E718 of 2024 DK Musinga, P Lilan & JO Okello, JJA May 29, 2026 Between Olympic Trading Company Limited Applicant and Ali Said Omar Basabra (The administrator of the Estate of the Late Said Omar Mohamed Basabra) 1st Respondent Sohail Development Limited 2nd Respondent The Chairman, National Land Commission 3rd Respondent The land Registrar 4th Respondent (Being an application for stay of execution of the judgment and decree in the Environment and Land Court of Kenya at Nairobi (Lady Justice Amollo, J.) delivered on 11th July, 2024 in ELC Case No. 259 of 2012 Environment & Land Case 259 of 2012 ) Ruling 1.On 11th December, 2024, the applicant’s application dated 24th September, 2024 seeking stay of execution of the judgment and decree in Environment and Land Court (ELC), Case No. 259 of 2012, came up for hearing before this Court (Wanjiru Karanja, Korir & Odunga, JJA). The impugned judgment was in favour of the 1st respondent, who was declared as the lawful owner of a property known as Nairobi/Block 17/318. 2.The application was compromised by way of a consent that was recorded in court in the presence of Mr. Shikanda, who held brief for Mr. Osundwa for the applicant, Mr. Eric Mutua, Senior Counsel for the 1st respondent, and Mr. Paul Kamara, who held brief for Mr. George Oraro, SC for the 2nd respondent. There was no representation for the 3rd and 4th respondents, despite due service of a hearing notice upon them. The terms of the consent were as follows:“(i)That the subject matter of the appeal being land parcel LR. No. Nairobi/Block 17/318 be preserved to the effect that the same should not be encumbered, transferred or charged pending the hearing and determination of this appeal.(ii)That the decretal sum of Kshs. 50,000,000 awarded to the 1st respondent be secured by a suitable Bank Guarantee in favour of the 1st respondent’s advocates in the sum of Kshs. 50,000,000 from either KCB Bank Ltd, Equity Bank or Co-operative Bank within 60 days.(iii)That in default of issuance of the Bank Guarantee, the 1st respondent be at liberty to execute that component of the decree.(iv)That the hearing of the appeal be expedited.” 3.The applicant did not comply with the terms of the aforesaid consent order. Consequently, vide an application dated 19th February, 2025, the applicant sought a review and/or variation of the terms of the consent. The prayers sought in the said application are as follows:“2.The honourable court be pleased to review and/or vary the Conditional Orders given on 11th December, 2024 requiring the appellant to procure a bank guarantee in favour of the 1st respondent’s advocate, in the sum of Kshs. 50,000,000/- million from either KCB Bank Limited, Equity Bank Limited or Co- operative Bank Limited within 60 days and in place substitute and allow for an alternative security in the form of the property known as LR. No. Nairobi/Block 84/1220.3.The Honourable Court be pleased to order that the Title to the property known as LR No. Nairobi/Block 84/1220 be deposited in Court within 60 days from the date hereof.4.In the alternative to prayer (2) above, this Honourable Court be pleased review (sic) and/or vary the Conditional Orders given on 11th December, 2024 by incorporating an additional three (3) Banking institutions to the list of banks that the appellant is required to procure a bank guarantee in the sum of Kshs. 50,000,000.5.The honourable court be pleased to enlarge the timelines within which the appellant is required to secure a bank guarantee in favour of the 1st defendant advocate in the sum of Kshs.50,000,000/- for a further Sixty (60) days.” 4.The gist of the application as per the affidavit of Eddy Peter Kimemia, the Managing Director of the applicant, is that the applicant was unable to secure a bank guarantee of Kshs. 50 million from any of the three banks cited in the consent order because the banks were charging high interest rates which the applicant could not afford. The applicant argues that it has another property known as LR. No. Nairobi/Block 84/1220 which it wishes to offer as a security pending hearing and determination of the appeal. The value of the said property is said to be Kshs. 85,500,000 as demonstrated by a valuation report that is annexed to the applicant’s affidavit. 4.The applicant further states that there are other banks that are ready and willing to provide the bank guarantee as ordered by this Court, but that can only be done if the consent orders are varied. 5.The application was strenuously opposed by the 1st respondent.In an affidavit sworn by Hassan Said Omar, one of the ad litem administrators of the estate of Said Omar Mohammed Basabra, he stated that the consent order was recorded following consultation between his advocate, Mr. Eric Mutua, SC, Mr. Osundwa for the applicant, and Mr. Oraro, SC for the 2nd respondent; that there was no fraud or misrepresentation or ignorance of any material facts that preceded the recording of the consent, and, therefore, the consent cannot be varied, except by consent. 6.Regarding the prayer for substitution of the security, the applicant objected to the same, arguing that a court of law had already determined that the appellant was involved in a fraudulent scheme of unlawful and illegal transfer of the suit property; that Mr. Eddy Peter Kimemia, a director of the applicant who has sworn the affidavit in support of the application, has been involved in criminal activities relating to land as demonstrated in a ruling delivered in High Court criminal application No. 143 of 2015; that Mr. Kimemia has also been involved in multiple land related cases, some of which relate to fraudulent acquisition of title documents and, therefore, the authenticity and legality of any land title documents held by the applicant are highly suspect. 7.When the application came up for hearing on 4th March, 2026, both Mr. Shakanda for the applicant and Mr. Eric Mutua, SC for the 1st respondent made brief submissions in support of their respective client’s arguments as summarised hereabove. Mr. Paul Kamara for the 2nd respondent and Mr. Oscar Eredi for the 4th respondent chose not to take any position in the application. 8.We have considered the application and the brief submissions by the applicant and the 1st respondent’s counsel. It is not in dispute that on 11th December, 2024, the parties entered into an express consent that we have already reproduced verbatim. 9.It was not demonstrated that there was any fraud or misrepresentation in recording of the consent. It is trite law that to vary a consent order, the applicant must demonstrate that there was fraud, collusion or non-disclosure of material facts, or that the consent was entered into under duress or coercion, or that there was a fundamental mistake or misrepresentation. See Brooke Bond Liebig Limited vs Mallya [1975] EA 266 where it was held:“A consent order 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.”See also Flora Wasike vs Destimo Kwamboka [1988] 1KAR 625. 10.As regards the applicant’s argument that he was unable to secure a bank guarantee from any of the three banks cited in the consent order because their rates of interest are very high, the applicant did not adduce any evidence in support of that averment. The applicant did not produce any correspondence that he had with the said banks or any other bank for that matter. The applicant did not demonstrate that it had made any effort to secure the bank guarantee within the stipulated period of time. 11.As for the proposed alternative security, it would be unjust and inequitable for this Court to unilaterally compel the 1st respondent to accept it, and in any event, we have already determined that there are no lawful grounds to warrant variation of the express consent order. 12.For these reasons, we find this application devoid of merit and dismiss it in its entirety with costs to the 1st respondent. DATED AND DELIVERED AT NAIROBI THIS 29TH DAY OF MAY 2026.D. K. MUSINGA (PRESIDENT)..............................JUDGE OF APPEALP. LILAN.............................JUDGE OF APPEALDR. J. O. OKELLO..............................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR.