https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4983

## REPUBLIC OF KENYA ## IN THE ENVIRONMENT AND LAND COURT AT KISUMU ## ELCLA E023 OF 2026 **PETER OCHIENG OPIYO………………………APPELLANT/APPLICANT** **VERSUS JOEL OBONYO NYAKWAKA…………………………...1ST RESPONDENT CHARLES ONDU DEYA………………………………….2ND RESPONDENT ELIZABETH JULIA NDUNGE…………………………..3RD RESPONDENT THE ATTORNEY GENERAL……………………………4TH RESPONDENT** **RULING** ## Introduction [1] This appeal arises from Maseno MCELC No. 57 of 2018. In that primary suit, Peter Ochieng Opiyo, the Applicant and intended Appellant in the current proceedings, brought an action against Joel Obonyo Nyakwaka (the 1st Respondent), Charles Ondu Deya (the 2nd Respondent), Elizabeth Julia Ndunge (the 3rd Respondent), and The Hon. Attorney General (the 4th Respondent). By judgment dated 21st August 2024, the Trial Court dismissed the Applicant’s suit in its entirety and awarded costs to the Respondents. [2] On 27th August 2025, the Applicant filed an Environment and Land Court Miscellaneous Land Application E050 of 2025 seeking leave and/or an extension of time to file an appeal out of time from the Trial Court’s judgment. On 5th March 2026, the parties recorded a consent as follows: *“THAT application dated 27/8/2025 be allowed on condition that the applicant deposits the sum of Kshs 152,500/= being security in an interest earning Bank Account in the joint names of counsels currently on the record for the parties herein within 30 days hereof in default execution for costs to issued and the application be deemed having been dismissed with costs.”* [3] The thirty-day conditional period expired without the Applicant depositing the stipulated security of Kshs 152,500 into the designated joint interest-earning bank account. Despite failing to meet the condition upon which leave was granted, the Applicant filed ELC Appeal No. E023 of 2026, in which the Applicant has filed the instant Notice of Motion dated the 28th of April 2026. **The Application** [4] The application is brought under Sections 1A, 1B, 3A, and 63 of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules, 2010; Articles 50 and 159 of the Constitution of Kenya; and all other enabling provisions of the law. The Applicant seeks the following orders: i) Pending the hearing and determination of ELC Appeal No. E023 of 2026, this Honourable Court be pleased to grant an order of extension of time for the Applicant to comply with the orders issued on the 5th of March 2026. ii) The Applicant be granted an additional seven days to ensure that he deposits the sum of Kshs 152,500 as security as previously directed by the court. [5] This application is based on the affidavit of Peter Ochieng Opiyo, sworn on 28th April 2026. The Applicant admitted that the Court ordered him on 5th March 2026 to deposit Kshs 152,500 as security into an interest-bearing account in the joint names of the lawyers representing both parties. He states that upon receiving the Court order from his lawyers, he immediately began trying to gather the funds. However, he was overwhelmed by the large amount he needed to deposit, a situation worsened by difficult economic conditions that made it hard for him. He averred that he is currently unemployed and had to seek loans and financial help from friends and family to meet the security requirement. This process took longer than expected, which caused him to fail to meet the deadline. [6] The Applicant asserted that he has since paid the required security in full and requested seven days to enable him to comply with the conditional orders. The Applicant expressed fear of imminent execution by the Respondents, arguing that unless the extension of time is granted, he will suffer irreparable harm and damage from the looming execution of the Trial Court’s decree. ## The 3rd Respondent’s Reply [7] The 3rd Respondent opposed the application by way of a replying affidavit, sworn on 5th May 2026 on her behalf by her advocate of record, Richard B.O. Onsongo. Counsel deposed that failure to comply with the consent order results in the application dated 27th August 2025 being deemed dismissed with costs by operation of law. Counsel further argued that there is currently no valid court order granting leave or extending time for the filing of this appeal. The appeal upon which the instant application is founded is inherently incompetent. It constitutes a gross abuse of the process of the court and is incurably defective, as it was filed out of time without the requisite legal leave. [8] Counsel further stated that the consent order is a binding contract and can be revoked, modified, or changed only on recognised grounds for invalidating a contract, such as mistake, misrepresentation, coercion, or fraud. It is observed that the Applicant has not claimed, pleaded, or demonstrated any of these grounds that would justify the court's interference with a contractual consent order. [9] Finally, Counsel argued that the requirement to deposit funds is the crucial condition that gives validity and legitimacy to any appeal under the consent order. Without strict adherence to this condition, any actions or measures taken by the Applicant are invalid from the outset. Consequently, the appeal lacks legal basis and cannot serve as a basis for an extension of time. ## Parties’ Submissions [10] The Applicant outlined two main issues for consideration: whether there is sufficient cause to approve a seven-day extension to deposit the Kshs 152,500 security in accordance with the court order of 5th March 2026, and whether the balance of convenience and justice supports granting this extension to facilitate a fair hearing of the Appellant's appeal. [11] The Applicant relied on Section 95 of the Civil Procedure Act, which provides that, *“Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired”.* The Applicant also cited Section 79G of the Civil Procedure Act, 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”.* [12] Further reliance was placed on Order 26 Rule 5 of the Civil Procedure Rules, that: *“If security for costs is not given within the time ordered and if the plaintiff is not permitted to withdraw the suit, the court shall, upon application, dismiss the suit. (2) If a suit is dismissed under sub rule (1) and the plaintiff proves that he was prevented by sufficient cause from giving the required security for costs the court may set aside the order dismissing the suit and extend the time for giving the required security”.* [13] Central to the Applicant’s submissions is the Supreme Court decision in ***Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR),*** which sets out the principles for extending time. The Applicant argued that the delay was satisfactorily explained by genuine financial constraints and unemployment, which constitute a compelling reason in equity. The Applicant averred that, having now secured the funds, he has demonstrated a willingness to do equity, reinforcing the idea that he is not merely playing around with the court’s time. [14] Relying on ***Kamau (Acting as the personal representative of*** ***Francis Thuo Kamau t/a Segero Club & Bar) v Odhiambo & 2 others [2023] KEHC 24661 (KLR),*** the Applicant argued that the twenty-four-day delay in filing the application for extension does not amount to an elongated or unreasonable delay, asserting that he acted promptly and without undue delay. [15] On the issue of the overriding objective and substantive justice, the Applicant relied on Article 159(2)(d) of the Constitution, which provides that justice shall be administered without undue regard to procedural technicalities, and on Section 1A of the Civil Procedure Act, which states that the overriding objective of this Act and the rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. On this point, the Applicant referred to the High Court’s decision in ***Mutinda v Mutinda alias James Mutinda [2024] KEHC 2731 (KLR),*** in which the court stated: ***“The court therefore has to balance the two contrasting rights and is guided by the provisions of Article 159(2)(d) of the Constitution and Section 1A and 1B of the Civil Procedure Act in administering justice. The focus being on substantive justice, rather than procedural technicalities, and the just, efficient and expeditious disposal of cases. At this point the court appreciate the sentiments expressed by the High Court in John Gachanja Mundia v Francis Muriira Alias Francis Muthika & Another eKLR that, ‘However, I will be guided by a greater sense of justice. Courts of law have said that, with the entry of the overriding principle in our law and the anchorage of substantive justice in the Constitution as a principle of justice, courts should always take the wider sense of justice in interpreting the prescriptions of law designed for grant of relief.’’’*** [16] The Applicant submits that denying the extension would be a disproportionate penalty, defeating the interests of justice by permanently excluding the Appellant from the appellate process without a substantive determination of the appeal. [17] The 3rd Respondent’s counsel argued that lawyers appearing in court have apparent authority to bind their clients to settlement agreements and consent orders. They supported this by citing the Court of Appeal’s decision in ***Flora Wasike v Destimo Wamboko [1982 – 88] 1 KAR 266,*** which sets the standard for challenging consent judgments. ***“i. It is settled law that the consent judgment can only be set aside on the same grounds as would justify the setting aside of a contract for example fraud, mistake or misrepresentation. ii. An advocate would have ostensible authority to compromise a suit or consent to a judgment so far as the opponent is concerned. iii. The court would not readily assume that judgment recorded by a Judge as being by consent was not so unless it was demonstrably shown otherwise.”*** [18] Building on this, the 3rd Respondent argues that the order dated 5th March 2026 has the force and effect of a contract and cannot be varied or extended whimsically by the Court on account of post-consent financial hardship. To emphasise the rigidity of consent orders, the 3rd Respondent cited, among others, the holding in ***Brooke Bond Liebig vs Mallya (1975) EA 266,*** where Mustafa Ag. VP stated: ***“The compromise agreement was made an order of the court and was thus a consent judgment. It is well settled that a consent judgment can be set aside only in certain circumstances, e.g on grounds of fraud or collusion, that there was no consensus between the parties, public policy or for such reasons as would enable a court to set aside or rescind a contract. In this case the parties and their advocates consented to the compromise in very clear terms; they were certainly aware of the material facts, and there could not have been any mistake or misunderstanding. None of the factors which could give rise to the setting aside of a consent order.”*** [19] The 3rd Respondent argued that the consent order, as drafted, was self-executing. Once the Applicant defaulted on the thirtieth day, Miscellaneous Application No. E050 of 2025 was automatically dismissed with costs. Consequently, no leave was granted to extend the time to file the appeal. Accordingly, the Memorandum of Appeal in ELC Appeal No. E023 of 2026 lacks legal validity. The 3rd Respondent concludes that the only procedurally viable avenue for the Applicant would have been to revive Kisumu ELC Misc. E050 of 2025, apply for review, and seek to extend the time to comply with the order of the 5th of March 2026. This Court, sitting in a new Appeal file, cannot be asked to review an order and extend time granted in a totally different application. The appeal and the application dated the 28th of April 2026 are thus incurably defective, constitute an abuse of the court process, and should be struck out. ## Analysis and Determination [20] After reviewing the affidavits and the submissions of both parties, this Court identifies two interwoven issues for determination: 1. The legal nature of the consent order dated 5th March 2026. 2. This Court’s jurisdiction to entertain the extension application for ELC Appeal No. E023 of 2026, given that the original leave was granted in a separate Miscellaneous Application, and whether a proper appeal lies here. ### **The Nature of the Consent Order** [21] The present application is premised on the order dated 5th March 2026, issued by the Honourable Lady Justice E. Asati in Kisumu ELC Misc. Application No. E050 of 2025. The order allowed the application for leave to appeal out of time, strictly on the condition that the Applicant deposited Kshs 152,500 within thirty days. It further contained a default clause providing for dismissal of the application with costs in the event of non-compliance. This meant that failure to comply with the stipulated condition took effect automatically upon the expiration of the timeline, without the necessity of any further pronouncement by the court. Consequently, the Miscellaneous Application No. E050 of 2025 ceased to be a live matter. It was terminated by the very consent of the parties, which had been adopted as a formal order of the Court. [22] I note that the Applicant relied extensively on the equitable principles of extension of time set out in ***Salat v Independent Electoral and Boundaries Commission & 7 others (supra),*** urging the Court to exercise its discretion to forgive the delay, which was allegedly caused by economic hardship and unemployment. However, the Applicant conflates two entirely distinct legal concepts: the Court’s discretionary power to extend general statutory timelines under Section 95 of the Civil Procedure Act, and the Court’s jurisdiction to unilaterally rewrite the terms of a freely negotiated, self-executing consent order. [23] As accurately submitted by the 3rd Respondent, a consent order is a hybrid creature of law. It is both a judicial pronouncement and a binding contract between the parties. The jurisprudence governing the variation or setting aside of consent orders is restrictive to ensure finality in litigation. As established in the authorities cited, ***Flora Wasike v Destimo Wamboko and Brooke Bond Liebig v Mallya,*** a consent judgment or order cannot be casually set aside or varied merely because one party subsequently finds the conditions onerous, inconvenient, or economically challenging. [24] The party seeking to impeach a consent order must show vitiating factors analogous to those that would rescind a valid contract under the Law of Contract, namely, fraud, collusion, mutual mistake, lack of capacity, or misrepresentation. In the present matter, the Applicant has not pleaded any of these factors. He does not allege that the consent order of the 5th of March 2026 was procured by fraud or misrepresentation. He does not assert that his advocates lacked the ostensible authority to bind him to the condition of depositing Kshs 152,500. He merely contends that his subsequent unemployment and poverty made compliance difficult, necessitating reliance on friends and relatives to source the funds. [25] While this Court empathises with the genuine economic struggles of litigants, financial incapacity arising after consent does not constitute a recognised legal ground for vitiation of a consent order. The Applicant’s advocates must have evaluated the financial parameters on his behalf and explicitly committed him to the strict thirty-day timeline. Permitting the Applicant to unilaterally resile from the penal consequences of that consent order solely on the basis of subsequent hardship would undermine the sanctity and finality of consent orders. Under the consent order, the application extinguished itself by its own terms. ### **Procedural Competence of the Application** [26] Beyond the strictures of the consent order itself, the instant application suffers from a procedural and jurisdictional shortcoming that cannot be overlooked. It is an established tenet of civil procedure, as mandated by Section 79G of the Civil Procedure Act, that an appeal from a subordinate court must be filed within thirty days of the date of the decree or order appealed against. Where that statutory timeline lapses, an intended appellant loses the automatic right of appeal and must seek leave of the appellate court to file the appeal out of time, upon showing sufficient cause. [27] In this case, the Applicant correctly commenced Kisumu ELC Misc. Application No. E050 of 2025 to seek the requisite leave. Asati J granted leave, but it was conditional upon the deposit of security. Because the condition was not met within the timeframe, the leave never crystallised. As a result, the overarching statutory bar against filing an appeal out of time remained firmly in place. [28] Because the leave to appeal out of time was extinguished by the default, the Memorandum of Appeal filed in ELC Appeal No. E023 of 2026 is incompetent, invalid, and void ab initio. This Court has no inherent or statutory jurisdiction to review, vary, extend, or otherwise interfere with an order issued by a judge in the distinct Kisumu ELC Misc. Application No. E050 of 2025 file. [29] The proper procedural course, assuming for the sake of argument that the Applicant had valid contractual grounds to seek an extension of time in the face of a self-executing consent order, would have been to file an application within the Miscellaneous file. Such an application would first have to seek the revival of the dismissed application, then a review or setting aside of the consent order on grounds of mistake or fraud, and finally a prayer for the enlargement of time. Simply put, there is no proper appeal before the court to extend the conditions. [30] Article 159(2)(d) of the Constitution and the oxygen principle under Section 1A of the Civil Procedure Act are designed to facilitate justice within established procedural frameworks, not to authorise the complete abandonment of the rules of procedure. The Applicant’s reliance on Order 26 Rule 5 of the Civil Procedure Rules, which addresses the dismissal of a suit for failure to furnish security for costs and the subsequent setting aside of such dismissal upon proof of sufficient cause, is similarly misplaced in this context. The Kshs 152,500 in this matter was not merely security for costs ordered in an ongoing, competent appeal; it was an express condition precedent to the grant of leave to file the appeal out of time in the first instance. The failure to deposit the funds did not merely halt a valid appeal; it prevented the appeal from ever lawfully coming into existence. ## Final Orders [31] In light of the foregoing, the Notice of Motion dated the 28th of April 2026 is devoid of merit. The Court issues the following final orders: 1. The Notice of Motion dated the 28th of April 2026 is hereby dismissed with costs to the 3rd Respondent. 2. The Memorandum of Appeal filed in this matter, having been filed without requisite leave, is incompetent and is consequently struck out. **Delivered virtually, dated and signed this 30th day of July 2026** **C.C. Oluoch** **Judge** In the presence of: Mr Onsongo for the 3rd Respondent Faith Court Assistant In the absence of the Applicant