Alfred Nyadimo Agunga v China Communications Construction Company Limited
The bottom line
#Kenya's Court of Appeal varied a consent order so the losing company could secure a Kshs.100 million decree with a different insurer's bond or bank guarantee.
What this practically means
#Executive summary
#Key legal issues
#Whether the consent order of 3rd March 2025 requiring an insurance bond from CIC Insurance should be varied or rescinded
The Court varied the consent order, allowing the respondent to furnish security by way of an insurance bond from any reputable insurance company other than CIC, or in the alternative a bank guarantee, within 30 days, failing which the applicant may execute.
The Court noted settled law that a consent binds the parties and may only be impeached on grounds such as fraud or collusion. However, CIC Insurance had confirmed by email that it does not offer the bond in question, making performance impossible. Both parties bore responsibility: the respondent failed to seek variation in good faith, while the applicant did not move to execute. Balancing the scales, the Court varied the terms rather than rescinding the stay outright, and preserved the applicant's right to execute on continued default.
Legal principles established
#- A consent order takes the nature of a judgment or order of the court and binds the parties who entered into it, and can only be set aside on grounds that would justify setting aside a contract, such as fraud, collusion or an agreement contrary to the policy of the court.
- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled which are not carried out.
- An order made on an application to the Court may be varied or rescinded by the Court under rule 59 of the Court of Appeal Rules, 2022, including where the person on whose application an order permitting the doing of some act was made has failed to show reasonable diligence.
Court orders
#- 1.The respondent do offer an insurance bond equal to the decretal sum from any other reputable insurance company acceptable to both parties other than CIC
- 2.In the alternative, the respondent do execute a bank guarantee equal to the decretal sum from a reputable bank acceptable by both parties
- 3.The respondent do comply with either of the orders above within 30 days of the Ruling failing to which the applicant shall be at liberty to execute
- 4.The costs of the application shall abide the outcome of the appeal
- On appeal from
- High Court
- Mombasa HCCOMM No. E002 of 2021
- Jurisdiction invoked
- Rule 59 of the Court of Appeal Rules, 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Alfred Nyadimo Agunga v China Communications Construction Company Limited", Case Analysis (2026). Application dated 7th July 2025 (applicant is respondent in the main appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/636/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.