https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8299

Soyonin Farm Ltd & another v Abuko & another (Suing as the administrators of the Estate of the Late Ernest Abuko Otsibo - Deceased) (Civil Appeal E1112 of 2025) [2026] KEHC 8299 (KLR) (Civ) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 8299 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1112 of 2025 WA Okwany, J May 14, 2026 Between Soyonin Farm Limited 1st Appellant Kipchumba Chepkieng 2nd Appellant and Agnes Mutuli Abuko & Derrick Otsibo Abuko (Suing As The Administrators Of The Estate Of The Late Ernest Abuko Otsibo - Deceased) Respondent Ruling Background 1.The respondents instituted the suit in the lower court seeking damages arising from a fatal road traffic accident involving the deceased. In the course of the proceedings, the parties recorded a consent on liability at the ratio of 60:40 in favour of the respondents. Parties also agreed that the respondents’ documents be admitted without calling the makers and that written submissions be filed on quantum. 2.The Respondents subsequently changed advocates and filed an application seeking orders to set aside the consent judgment and to amend the plaint on the grounds that material particulars concerning the deceased’s occupation, income and funeral expenses had not been properly pleaded and that the respondents had not consented to the compromise entered into by the former advocates. 3.The learned magistrate allowed the application, thereby precipitating the present appeal and application for stay of proceedings. The Application 4.This ruling is in respect to the Application dated 21st November 2025 seeking stay of proceedings in Milimani CMCC No. E2012 of 2022 pending the hearing and determination of this appeal. 5.The appellants contend that the appeal is arguable and raises substantial questions regarding the circumstances under which a consent judgment may be set aside. 6.They submit that the learned magistrate erred in setting aside the consent despite the absence of proof of fraud, collusion, mistake, misrepresentation or any other recognized ground for impeaching a consent judgment. 7.The appellants further argue that the learned magistrate wrongly found that the appellants had not opposed the prayer for amendment despite express opposition contained in the replying affidavit filed before the lower court. 8.The appellants contend that unless stay is granted, the lower court proceedings will proceed on the basis of amended pleadings and altered issues which may culminate in a judgment founded upon a liability regime different from that originally agreed upon by the parties, thereby rendering the appeal nugatory. 9.Reliance was placed on several authorities governing stay of proceedings and consent judgments including the case of Kenya Commercial Bank Limited vs. Benjoh Amalgamated Limited & Another [1998] eKLR, where the Court of Appeal stated that the a solicitor has a general authority to compromise on behalf of his client, if he acts bona fide and not contrary to express direction and that no limitation of the implied authority avails the client as against the other side unless such limitation has been brought to their notice. 10.Reliance was also placed on Brooke Bond Liebig (T) Ltd vs. Mallya [1975] EA 266 where the Court stated that a consent judgment may only be interfered with where it was obtained by fraud or collusion, or by an agreement contrary to the policy of the court or where consent was given without sufficient material facts, or in misapprehension or ignorance of material facts. 11.The appellants submit that no such circumstances were demonstrated before the subordinate court. 12.On the principles governing stay of proceedings, the appellants relied heavily on Global Tours & Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000, where Ringera J. stated:“As I understand the law, whether or not to grant a stay of proceedings… is a matter of judicial discretion to be exercised in the interest of justice… the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted.” 13.The appellants also cited Kenya Wildlife Service vs. James Mutembei [2019] eKLR where the Court observed:“Stay of proceedings should not be confused with stay of execution pending appeal. Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation.” 14.Counsel further relied on Permanent Secretary Ministry of Roads & Another vs. Fleur Investments Limited [2014] eKLR where the Court held:“If the orders sought are not granted… the appeal now pending before this Court will have been rendered moot.” 15.The appellants maintain that the application was filed expeditiously and that the interests of justice favour preservation of the substratum of the appeal. The Respondents’ Case 16.The respondents oppose the application and submit that the threshold for grant of stay of proceedings has not been met. 17.They argue that stay of proceedings is a drastic and exceptional remedy that should only issue in clear and compelling circumstances. 18.The respondents submit that the appellants have failed to demonstrate any prejudice they would suffer if the subordinate court matter proceeds to hearing and determination. 19.According to the respondents, the lower court has not yet rendered final judgment and the appellants retain the right to challenge any ultimate outcome through the appellate process. 20.The respondents further contend that the amendments allowed by the learned magistrate were necessary to place before the court the true and complete facts relating to the deceased’s occupation, earnings and funeral expenses. 21.It was submitted that the consent on liability had been entered into without full disclosure of material facts and that the amendments sought were intended to facilitate a fair and just determination of the dispute. 22.The respondents relied on Sarah Jelangat Siele vs. Attorney General & 2 Others [2016] eKLR, where the Court emphasized the central role of pleadings in dispute resolution and held that pleadings serve several fundamental purposes. Firstly, they define the nature and contours of the dispute; Secondly, it is through pleadings that the fair hearing promised by Article 50(1) of the Constitution is actualized. 23.The Respondents further cited Cropper vs. Smith (1884) 26 Ch D 700, where Bowen L.J stated that the object of courts is to decide on the rights of the parties and not to punish them for mistake and further, that amendments ought therefore as a rule to be allowed if thereby the real substantial question in controversy can be raised. 24.The respondents contended that no exceptional circumstances have been shown to warrant halting the lower court proceedings. Issues for Determination 25.Having considered the application, affidavits, rival submissions and authorities cited, I find that the following issues arise for determination:a.Whether the appeal raises arguable issues deserving judicial consideration;b.Whether the appeal would be rendered nugatory if stay of proceedings is not granted;c.Whether the appellants have demonstrated exceptional circumstances warranting stay of proceedings;d.Whether the application was filed without unreasonable delay; Analysis and Determination 26.On the arguability of the appeal, I am alive to the fact that at this stage, the Court is not called upon to determine the merits of the appeal conclusively. The question is whether the appeal raises bona fide issues deserving judicial interrogation. 27.The appellants challenge the propriety of the learned magistrate’s decision setting aside a consent judgment on liability. 28.The law regarding interference with consent judgments is well settled. In Flora Wasike vs. Destimo Wamboko [1988] eKLR, the Court held that:“It is now settled law that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside.” 29.Similarly, in Brooke Bond Liebig (T) Ltd vs. Mallya [1975] EA 266, the Court stated:“A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract.” 30.I find that whether the learned magistrate properly applied those principles is plainly an arguable issue. 31.The appellants also challenge the finding that they had not opposed the amendments sought despite portions of the replying affidavit indicating otherwise. 32.I am satisfied that the appeal raises substantial and arguable questions deserving appellate interrogation. I am guided by the decision in Kaushuma Wambui vs. Hamisi Omari & Another [2015] eKLR where it was held that an arguable appeal does not necessarily mean an appeal that must succeed and that it is sufficient that the appeal raises even a single bona fide point. 33.On whether the appeal would be rendered nugatory, the Appellants argue that if the lower court proceedings continue on the basis of amended pleadings and a revised liability structure, the appeal challenging the setting aside of the consent judgment may be an academic exercise. 34.The Court takes note of the fact that the intended appeal directly challenges the reopening of liability issues previously compromised by consent. My take is that if proceedings in the lower court continue to conclusion before the appeal is heard, there exists a real possibility that judgment may ultimately be entered on a fundamentally altered factual and legal framework. 35.The Court is persuaded that continuation of proceedings before determination of the appeal may substantially undermine the utility and effectiveness of the appellate process. 36.On the existence of exceptional circumstances, I note that the Respondents correctly submitted that stay of proceedings is a serious and exceptional remedy. In Kenya Wildlife Service vs. James Mutembei [2019] eKLR, the Court stated that stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation. 37.Similarly, Halsbury’s Laws of England, 4th Edition Vol. 37 at pages 330–332 states:“The stay of proceedings is a serious, grave and fundamental interruption… and therefore the Court’s general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.” 38.The court must however balance competing interests, including the right of appeal and the need for expeditious disposal of disputes. 39.The present appeal concerns the propriety of reopening a consent judgment, on liability, a matter that is central to the structure and trajectory of the lower court proceedings. 40.The Court is satisfied that the circumstances of this case disclose sufficient exceptional features warranting preservation of the status quo pending determination of the appeal. 41.On whether the application was filed without unreasonable delay, I note that the ruling appealed against was delivered on 3rd October 2025, the appeal was filed on 31st October 2025 while the present application was filed on 21st November 2025. 42.I am satisfied that the application was filed timeously and without unreasonable delay. 43.Upon considering the totality of the material placed before the Court, the Court is satisfied that the appellants have demonstrated that that the appeal raises arguable and substantial questions and may may be rendered nugatory if stay is denied. I am also satisfied that exceptional circumstances exist warranting preservation of the substratum of the appeal and that the application was brought without unreasonable delay. 44.Accordingly, the Notice of Motion dated 21st November 2025 is hereby allowed on the following terms:a.There shall be a stay of proceedings in Milimani CMCC No. E2012 of 2022 pending the hearing and determination of this appeal.b.Costs of the application shall abide the outcome of the appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 14TH DAY OF MAY 2026.HON W. A. OKWANYJUDGEIn the presence ofNgugi for AppellantAmutala for RespondentAbdirzak - Court Assistant