https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10177

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CIVIL APPEAL NO. E062 OF 2025** **MESHACK OTIENO SUMBA…………………………………APPLICANT** **VERSUS** **CAROLINE NALIAKA WANDAKI……………………1ST RESPONDENT** **JOSEPH BUKACHI SELINA T/A** **MSAMARIA MWEMA SHUTTLE……………………2ND RESPONDENT** **RULING** 1. By way of Notice of Motion dated 28th March 2025, the Applicant seeks the following orders; 2. **Spent.** 3. **Spent.** 4. **That the court be pleased to order Stay of execution of the Judgments in Eldoret Small Claims Court SCCC No. E170 of 2024, SCCC No. E175 of 2024, SCCC No. E 176 of 2024, SCCC No. E177 of 2024, SCCC No. E182 of 2024 and SCCC No. E183 of 2024 together with the decretal orders consequential therefrom pending the hearing and determination of the Applicant’s/Appellant’s appeal against the Ruling of Hon. T.W Mbugua delivered on 21st March, 2025.** 5. **That the ex-parte proceedings undertaken and the ex-parte judgments’ entered in these matters Eldoret Small Claims Court SCCC No. E170 of 2024, SCCC No. E175 of 2024, SCCC No. E176 of 2024, SCCC No. E177 of 2024, SCCC No. E182 of 2024 and SCCC No. E183 of 2024 and the subsequent proceedings and/or orders if any be set aside Ex Debito Justiciae.** 6. **That such other additional, suitable and or alternative orders be made as are just and expedient in all circumstances of the case and this application considered.** 7. **That the costs of this application be in the cause.** 8. The Application is expressed to be brought under **Order 42 Rule 6 & 7, Order 51 Rule I of Civil Procedure Rules; 2010 Sections 3 and 3A of Civil Procedure Act** and all enabling provisions of the Law. The Application is premised on the grounds on the face of it and the averments of the Applicant in the supporting affidavit to the application. 1. In the affidavit, he deponed that at time of the accident he was the legal and beneficial owner of Motor vehicle registration number KCU 196A Toyota Hiace, which was the suit Motor Vehicle duly insured by Directline Assurance Company Limited, with a valid policy from the said insurer on the date of the accident. He urged that he was to be blamed for the accident and annexed and marked as “MOS-1” a copy of the Agreement for Sale dated 10th May 2023 transferring the Suit Motor Vehicle to him. 2. Further, that all the 15 passengers aboard the Suit Motor Vehicle filed suits in the Small Claims Court Eldoret against Joseph Bukachi Selina, the registered owner of the Suit Motor Vehicle and summons to enter appearance were issued against him. All the 15 claims were prosecuted by the same counsel so the Applicant requested the Claimants Advocates to amend all the Statements of Claims and enjoin the Applicant as the 2nd Defendant by virtue of him being the legal and beneficial owner of the Suit Motor Vehicle and the insured of the Suit Motor Vehicle to enable the insurer enter appearance on behalf of the insured, the Applicant herein. 3. The deponent averred that the Respondent partly complied with the Applicant’s request and proceeded to amend nine Statements of Claim and enjoined him in the said Claims being Eldoret Small Claims Court SCCC No. E167 of 2024, SCCC No. E178 of 2024, SCCC No. 179 of 2024, SCCC No. E 184 of 2024, SCCC No. E185 of 2024, SCCC No. E186 of 2024 leaving out Eldoret Small Claims Court Numbers: SCCC No. E170 of 2024, SCCC No. E175 of 2024, SCCC No. E176 of 2024, SCCC No. E177 of 2024, SCCC No. E182 of 2024 and SCCC No. E183 of 2024, hence, no appearance was entered in the said matters by his insurer, as there was no privity of contract between the 2nd Respondent and his insurer. 4. He deponed that the insurer is only obliged to enter appearance for matters that its insured are personally sued and settle any decretal amounts arising therefrom. Further, that the insurer was able to enter appearance on his behalf, upon being served with Amended Statements of Claims, and even proceeded to settle the Claims for the nine ((9) suits in which he was enjoined as a Respondent. He annexed and marked as “MOS-2” copies of the amended Statements of Claims and payments made in settlement of the decretal amounts. 5. The deponent averred that the hearing of the claims in Eldoret Small Claims Court SCCC No. E170 of 2024, SCCC No. E175 of 2024, SCCC E176 of 2024, SCCC No. E177 of 2024, SCCC No. El82 of 2024 and SCCC No. E183 of 2024 in which the Applicant was not enjoined proceeded ex-parte and ex-parte judgements delivered. He Annexed and marked as “MOS-3 copies of the Statements of Claims and Judgements delivered. That Eshikhoni Auctioneers, acting on the Instructions of the Claimants, through their Advocates have served proclamation notices with intention to execute. He attached and marked as “MOS -4” copies of the Warrants of Attachment and Proclamations issued by Eshikhoni Auctioneers. 6. Further, that upon being notified of the ex-parte Judgments he instructed his Advocates to file an application to set aside the ex-parte Judgments which Application was filed in Eldoret Small Claims Court SCCC No. E 182 of 2024. That the same was however disallowed by the Honourable Court vide a Ruling delivered on 21st March 2025. Being dissatisfied with the Ruling he instructed his advocates and they preferred this appeal against the lower court Ruling. He annexed and marked as MOS-5 the Memorandum of Appeal dated 27th March, 2025. 7. The deponent averred that the appeal has an overwhelming chance of success and that if this matter is unresolved, the Claimants will be at liberty to execute the Decrees as the process has commenced under the instructions of the Claimants to his detriment and against his valid policy of insurance and further that if the stay of execution is not granted, and the sums awarded are paid out, this appeal will be rendered nugatory and he shall suffer substantial irreparable loss. 8. He further deposed that the application is brought in good faith and has been lodged expeditiously urging that it is against the rules of natural justice to punish a litigant for the mistakes out of his control and to deny any person a chance to defend themselves, he stated that it would be a miscarriage of justice if he is not allowed to defend himself. Additionally, that he shall suffer irreparable damage if orders sought are not granted. He prayed the court allow the application as prayed. 9. The 1st Respondent filed a Replying Affidavit dated 20th May 2025 in response to the Application. She deponed that said Application is baseless, it does not raise any triable issues, is fatally defective and an abuse of the court process hence the same ought to be dismissed in limine. That the Applicant is already a party in these proceedings and hence cannot claim they were not part of the proceedings. 10. She further deponed that there is a filed Consent between the parties stating the mode of payment on the Judgments delivered by Court on the files listed in their application which are ELDORET SCCC NO. E176 OF 2024, E170 OF 2024, E183 OF 2024, E177 OF 2024, E175 OF 2024 and E182 OF 2024. She annexed the Consent dated 11th April, 2025 and marked as"CNW1”. 11. The deponent averred that the first instalment of Kshs. 160,000 has been paid to the Claimant, annexing the Cheque dated 22nd April 2025 marked as "CNW2". Further, that the Application is completely misguided, lacks merit and is meant to mislead this court and delay the execution of judgement. She maintained that she opposed the application. 12. The 2nd respondent filed a response dated 15th June 2025, to the 1st respondents’ replying affidavit. He deponed that on 11th April 2025, he ignorantly entered into a consent for settlement of the Decretal sums delivered in 6 Claims without full understanding of the consent’s implications. Further, that ex-parte Judgements had been delivered against him on various dates, and Eshikhoni Auctioneers acting on the instructions of all the Claimants/Respondents through their Advocate served proclamation notices and proceeded to attach Motor Vehicle Registration Number KDH 058 N registered in his name. 13. He urged that the Applicant immediately instructed Counsel to file an application seeking stay of execution of the ex-parte Judgements together with the decretal orders consequential therefrom and stay of ex-parte proceedings and the trial court granted temporary stay pending hearing and determination of the Applicant’s Application dated 27th January, 2025. Upon issuance of the stay orders the Auctioneers released Motor Vehicle Registration Number KDH 058 N upon settlement of the Auctioneers fees. He attached and marked as “JBS-1” a receipt of payment of the Auctioneers fees for Kshs. 300,000/- dated 3rd February, 2025 marked JBS-1. 14. That the trial court dismissed the Applicant’s application vide its Ruling dated 21st March 2025 and immediately thereafter the Claimants instructed Eshikhoni Auctioneers to proceed and attach the suit motor vehicle to recover the decretal sums. Attempts to have the insurer settle the Claims yielded no fruits and something had to give. That so as to stall the process of attachment of the said Motor Vehicle, he consented to payment of the Decretal sums in instalments of Kshs 160,000/-. 15. The deponent averred that prior to execution of the consent he had been advised that the insurance was liable to pay the Decretal sums and should they decline, he was at liberty to file a declaratory suit compelling the insurance to settle the 6 Claims and recover the amounts. He stated that he was unrepresented by counsel, ignorant of the material facts and so he blindly entered into the consent without understanding its implications in a bid to avert attachment of the Motor Vehicle a second time while the Applicant was negotiating with the insurance for settlement of the Claims. 16. He stated that the execution of the lower court ex-parte Judgements was imminent as stay of execution had been denied and under the circumstances he had to comply with the Claimants demands which clearly proves that the consent was obtained under compulsion and or duress. The deponent averred that when they pursued the Insurer further they refuted the Claims alleging that there was no privity of contract. He urged the court to take judicial notice of the fact that failure by the Applicant and the deponent to defend the Claims was not of their own making but it was due to the fact that the Claimants’ Counsel failed to amend the Statements of Claims and enjoin the Applicant as the 2nd Respondent by virtue of him being the legal and beneficial owner of the Suit Motor Vehicle. 17. He further urged that he had valid reasons that would warrant rescinding the consent which was entered through misrepresentation as the Applicant and he stands to suffer substantial loss by compensating the Claimants/Respondents a total sum of Kshs. 1,016,000/- together with costs and interests thereto totalling to Kshs. 1,440,000/- yet the suit Motor Vehicle had a valid insurance policy cover and the said insurance is willing to settle any Claims arising from the accident subject to the ex-parte Judgements being set aside, the cases being re-opened and the Applicant being enjoined in the said Claims. 18. The deponent averred that the Applicant has since remitted a substantial amount to the Claimants’ Advocates, being Kshs. 480,000/- as at 22nd June, 2025, annexing and marking as JBS- “3 a & b" copies of bankers’ cheques issued to the Claimants/Respondents Advocates. He further deponed that the 6 Claimants would not be in a position to refund the paid out amounts in the event the appeal succeeds as they have not furnished the Court with any documentary evidence to prove their financial standing. Further that the fact that an appeal has been filed is sufficient reason for an order of stay pending appeal. He urged that the respondents would not suffer any prejudice if the application is allowed. 19. The Applicant filed a further supporting affidavit dated 18th June 2025 in response to the replying affidavit, where he reiterated his averments in the supporting affidavit and implored the court to preserve the substratum of the Appeal and give orders for depositing the balance of the Decretal sum in an interest earning joint account to be opened by both counsels. The parties were directed to file submissions on the Application and they both complied **Applicants’ Submissions** 1. Learned counsel for the applicant filed submissions dated 18th June 2025. He briefly set down the facts underlying the application and proceeded to submit on the issues for determination. 2. Counsel urged that **Order 42 Rule 6 (2) of the Civil Procedure Rules** outlines the conditions under which a court can grant a stay of execution of a decree or order pending appeal and summarised the provisions therein. Counsel urged that in **Kiambu Transporters v Kenya Breweries [1997] eKLR** the Court was of the view that the following conditions must be satisfied before the Court can grant a stay; That the Application has been made without unreasonable delay; That substantial loss will result to the Applicant unless such order is made and that Security for due performance of the decree has been given by the Applicant. 3. Counsel urged that in the cases of **Kiplagat Kotut vs Rose Jebor Kipngok [2015] eKLR,** **Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others [2012] eKLR** and **Kenya Shell Limited vs Benjamin Karuga Kibiru [1986] KLR 410** the common thread was that a stay of execution will not be granted unless the conditions in **Order 42 Rule 6 of the Civil Procedure Rules** are satisfied. He additionally urged that in the case of **G.N. Muema P/A (Sic) Mt View Maternity & Nursing Home v Miriam Maalim Bishar & another [2018] eKLR,** the Court was of the view that, evidently, the three (3) prerequisite conditions set out in the said **Order 42 Rule 6 of the Civil Procedure Rules, 2010** cannot be severed. The key word is “and”. It connotes that all three (3) conditions must be met simultaneously. 4. On substantial loss, Counsel urged that if the total decretal amount is paid to the Claimants/Respondents in all the Claims, it will not be possible to recover any part thereof from the Claimants. Therefore, if the stay sought is not granted and the Applicant/Appellant settles the entire decretal amount plus interests and costs there is a great likely hood that the Claimants/Respondents will not be able to refund the decretal amount or any part thereof paid to them in the event that the appeal is successful. 5. That under these circumstances the Applicant/Appellant stands to suffer substantial loss unless the stay of execution is granted otherwise, the appeal if successful may be rendered nugatory by the Claimants/Respondent’s inability to refund the decretal sum. He urged that the Appellant is amenable to depositing the balance of the decretal sum in an interest earning joint bank account to be opened by counsels. 6. On the issue of furnishing of security for due performance of the Decree, Counsel urged that the Applicant/Appellant is ready and willing to deposit the balance of the Decretal sum in an interest earning joint account as security for due performance of his obligation to pay the Decretal sum. He cited the case of **G.N. Muema P/A (Sic) Mt View Maternity & Nursing Home v Miriam Maalim Bishar & another (supra)** in this regard. He urged that in view of above, the Claimants/Respondents won’t suffer any prejudice if the balance of the Decretal sum is deposited in an interest earning Joint bank account. 7. On whether the application was filed without undue delay, Counsel posited that the application was filed only 12 days after the delivery of the lower court’s ruling seeking stay orders hence it was filed within the statutory period encapsulated under section 79G of the Civil Procedure Act, this then confirms that the application was filed timeously. 8. On the issue of Consent, Counsel urged that the 2nd Respondent in his innocence entered into a consent on 11th April, 2025 with counsel for the Claimants/Respondents for settlement of the Decretal sums. That it is worth noting that the 2nd Respondent was unrepresented, and was ignorant of the material facts and entered into the consent without understanding its implications. He laid down the sequence of events as deponed by the applicant with regards to the consent and cited **Kenya Commercial Bank Ltd v Specialised Engineering Co. Ltd [1982] KLR 485** in this regard. 9. He urged that the 2nd Respondent entered into the consent through misrepresentation and ignorance of material facts and failure to set aside the consent and grant stay of execution will cause the Applicant/Appellant grave injustice and hardship. Counsel invoked the provisions of **Article 50 of the Constitution** on the right to a fair hearing and prayed the court allow the application as prayed. **1st Respondents’ Submissions** 1. Learned counsel for the 1st Respondent filed submissions dated 18th October 2025. He reproduced the provisions of **Order 42 Rule 6 of the Civil Procedure Rules 2010** and urged that the purpose of an Application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. 2. That however, in doing so, the Court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The Court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs. Indeed, to grant or refuse an Application for stay of execution pending appeal is discretionary. The Court when granting the stay however must balance the interests of the Appellant with these of the Respondent. 3. Counsel cited the case of **James Wangalwa & Another vs Agnes Naliaka Cheseto, Misc. Application No. 42 of 2011 (2012) eKLR** on substantial loss and urged that the he applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential; care of the applicant as the successful party in the appeal. 4. Counsel urged that the Applicant had filed an application dated 27th January, 2025 where among other prayers he had sought for: - 5. *That leave be granted to the Applicant (Meshack Otieno Sumba) to come on record as an interested party in SCCC No. E182 of 2024, SCCC No. E176 of 2024, SCCC No. E170 of 2024, SCCC 183 of 2024, SCCC No. 177 of 2024 and SCCC No. 175 of 2024.* 6. *That the Honourable Court be pleased to order stay of execution of the Judgment in SCCC No. E182 of 2024, SCCC No. E176 of 2024, SCCC No. E170 of 2024, SCCC 183 of 2024, SCCC No. 177 of 2024 and SCCC No. 175 of 2024 together with the decretal orders consequential therefrom pending the hearing and determination of this application inter parties.* 7. *That the ex-parte proceedings undertaken the Judgment entered in these matters SCCC No. E182 of 2024, SCCC No. E176 of 2024, SCCC No. E170 of 2024, SCCC 183 of 2024, SCCC No. 177 of 2024 and SCCC No. 175 of 2024 and the subsequent proceedings and/or orders of any be set aside ex debito justiciae’* 8. The trial court through a Ruling dated 21st March 2025 dismissed the said application which in effect was that the Appellant was not enjoined in the proceedings and therefore there is no execution that was to be undertaken against the Appellant. In fact, there is no evidence tendered that demonstrated that there was intention of execution against the Appellant. The warrants that were issued the same were issued against the 2nd Respondent and not the Appellant and therefore there is no substantial loss that would be suffered by the Appellant. That in the circumstances this prayer for stay of execution as sought by the Applicant cannot be granted by the Honourable Court. 9. On the consent, Counsel urged that the 1st and 2nd Respondent entered into a consent dated 11th April, 2025 where they compromised the suits the subject matter of this appeal and the 2nd Respondent began paying the decretal sum by way of instalments. The effect of the consent overrides the instant appeal since the Appellant has not sought to have the said consent set aside. Counsel cited the decision of the Court of Appeal in the case of **Iner Counties Importers and Exporters Limited Vs Telepostal Pension Scheme Trustees & 5 Others (2019) eKLR** on the principles of setting aside a consent and urged that the Appellant has not challenged the consent that was entered nor it is among the grounds for appeal. It therefore follows that the consent compromising the suit is valid and in force and there the instant appeal has been rendered into an academic exercise hence lacking merit and the same ought to be dismissed. 10. Counsel submitted that the application dated 27th January, 2025 in which this appeal emanates was filed by the firm of Koira & Company Advocates who were on record on behalf of the Appellant herein. That there was no Notice of Change that was filed by the firm of Sumba in compliance with **Order 9 Rule 5 of the Civil Procedure Rules.** That it follows that until such Notice of Change is filed, the firm of Koira & Company Advocates are deemed to be the Advocates on record. 11. Even where it might be argued that an appeal is a separate suit, the firm of Sumba ought to have filed a Notice of Appointment pursuant to **Order 9 Rule 7 of the Civil Procedure Rules**. He posited that the firm of Sumba did not file any notice of appointment nor was any notice served upon the firm of the 1st Respondent and therefore on those grounds the pleadings filed by the firm of Sumba are fatally defective. Counsel urged that the appeal lacks merit and ought to be dismissed with costs. **Analysis & Determination** 1. Having addressed my mind to the pleadings as well as the submissions filed, from my perusal of the record, the following facts that are significant to the eventual determination of this Application are apparent. The first is that the fact that a consent was entered into between the Claimant herein and the 2nd Respondent is not denied. It is also apparent that the said consent has not been set aside and that the 2nd Respondent has in fact been making payments towards liquidating the decretal sum along the terms of the said consent. 2. My second observation is that the execution that is sought to be stayed is with respect to a Warrant of Attachment by Eshikoni Auctioneers wherein the judgement debtor is stated to be the 2nd Respondent Joseph Bukachi Selina t/a Msamaria Mwema Shuttle and not the Applicant Meshack Otieno Sumb. The third thing of note is that Counsel for the 1st Respondent has submitted that, whereas the Application and the attendant Memorandum of Appeal have been filed by the firm of Sumba and Company Advocates, there is no Notice of Change and/or Appointment of Advocate filed by the said firm yet this is not the firm that represented the Appellant in the Small Claims Court. 3. In light of my above observations, it is my considered opinion that the following are the issues that arise for determination; 4. **Whether the fact of the non-filing of the Notice of Change and/or Notice of Appointment of Advocates renders the Applicant’s Application fatal** 5. **Whether this entire suit has been compromised by dint of the fact that the consent entered into between the 2nd Respondent and the Claimants herein has not been set aside** 6. **Whether the Applicant herein has the requisite locus standi to seek for an order of stay of execution pending appeal** 7. At this juncture, it is important to state that because the issues as drawn are intertwined positive determination on the issue before will lead to a determination of the next issue and so on and so forth whereas a negative determination will end the matter at that point of determination in the event that this determination concludes the entirety of the case at this particular threshold. 1. On the 1st issue for determination, Counsel for the Respondent who raised the matter of lack of proper representation on the part of the Applicant submitted that his newly appointed Counsel ought to have registered their participation in this appeal by filing either a Notice of Change or Notice of Appointment of Advocates as provided under the provisions of **Order 9 Rule 5 and 7 of the Civil Procedure Rules.** The provision under **Rule 5** citedare as hereunder **Change of advocate [Order 9, rule 5]** **A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.** 1. The provisions under **Rule 7** on the other hand are as hereunder **Notice of appointment of advocate [Order 9, rule 7]** **Where a party, after having sued or defended in person, appoints an advocate to act in the cause or matter on his behalf, he shall give notice of the appointment, and the provisions of this Order relating to a notice of change of advocate shall apply to a notice of appointment of an advocate with the necessary modifications.** 1. A plain reading of Rule 5 clearly shows that the filing of a Notice of Change of Advocate by Counsel seeking to represent a party where such a change has occurred is a mandatory requirement. However, the provision under Rule 7 in the circumstances under which the submissions on behalf of the Respondent have been made applies where a party was acting in person before appointing an Advocate to Act on his behalf. 2. With regard to the instant case, the court takes note of the fact that basically, it is the Applicant’s contention that there was no appearance entered on their behalf in the trial court with respect to the matters in question as a result of which they failed to defend the cause an ex- parte judgement was entered against them which judgement it is that they seek to set aside hence this appeal. Indeed, I note from the pleadings filed in the Affidavit in support of the Application which are solely by Counsel for the Respondent that the said counsel’s pleadings indicated that the same were to be served upon the 2nd Respondent in person. 3. The court further notes, that even the Consent herein referred to, and to which the court will return to later the import of the same being one of the issues for determination, was entered into between the Counsel for the 1st Respondent and the 2nd Respondent in person. The above being the case, the only reasonable inference that the court ought to draw from my observations as herein summarised is that there was no Advocate on record for the Applicant in the trial court to warrant the filing of a Notice of Change of Advocates and because the judgement the subject matter of this appeal is a default judgement, then the Applicant did not Appear in person at any time of the proceedings to warrant the filing of a Notice of Appointment of Advocate. In this regard, I do not find merit in this submission. I am therefore satisfied that the firm of Sumba and Company Advocates now appearing for the Applicant/Appellant are properly on record. 4. On the 2nd Issue for determination, simply put, the question that the court needs to answer is what the fate of a consent that has not been set aside by either one of the parties that entered into it, and more particularly, the party alleging that they were misled and/or coerced into entering into the said consent is. This is because it is common ground that a consent compromising the judgement the subject matter of the appeal hereon filed was entered into between the 1st Respondent and the 2nd Respondent and the same has not been set aside even as the 2nd Respondent deposed in his Replying Affidavit that he was misled and coerced into entering the same by the 1st Respondent. 5. I also note that the Applicant filed a Further Affidavit in Response to the 2nd Respondents Replying Affidavit wherein he inter alia purports to confirm the circumstances under which the said respondent stated that consent was entered into. However, all these notwithstanding, the question that the court has posed on the fate of such a consent has been very eloquently answered in the case of **Brook bond Liebig (t) Ltd -vs- Mallya [1975] EA 266**, wherein the then Court of Appeal for East Africa set out the circumstance in which a consent judgment freely entered into by the parties to a dispute in court would be set aside by the court. Delivering the leading judgment of the court, Law Ag. P expressed himself thus: **The circumstances in which a consent judgment may be interfered with were considered by this Court in Hirani -vs- Kasam [1952] (19 EACA 131) where the following passage from Senton on Judgments and Orders 7th Edition Vol 1 P 124 was approved: prima facie any order made in the presence and with the consent of the counsel is binding on all parties to the proceedings or action and 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 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.”** 1. As guided by this decision then, it is my very well considered opinion that such a consent, as long as it stands, acts as a binding and enforceable judgment. It therefore completely resolves the underlying issues and brings the dispute to an end. In this regard, the parties are barred from litigating those same claims afresh. The Applicant can therefore not purport to move the court to stay the execution of a judgement of the trial court when a consent that compromised the said judgement has not been set aside in the manner enumerated by the Court of Appeal in the case herein above cited. In this regard then, it is my finding that the Applicant’s application is misconceived, is bad in law and lacks merit. 2. With this finding, there is no need for the court to delve into the 3rd issue raised for determination for reasons that the finding determines the entire application at this threshold. In the end, the Applicant’s Application is now hereby dismissed in its entirety with costs to the 1st Respondent. **Read dated and Signed Virtually at BUNGOMA on 9TH July 2026** **E. OMINDE** **JUDGE**