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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedApplication dated 7th July 2025 (applicant is respondent in the main appeal)· [2026] KECA 636 (KLR)

Alfred Nyadimo Agunga v China Communications Construction Company Limited

Court of Appeal
25 March 2026
2,509 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Kairu, Laibuta and Ngenye-Macharia, JJA) on an application dated 7th July 2025 brought under rule 59 of the Court of Appeal Rules, 2022 by Alfred Nyadimo Agunga, the decree-holder and respondent in a pending appeal by China Communication Construction Company Limited against a High Court judgment of 28th June 2024 awarding him Kshs.100,112,768 (Micheni, J.). Stay had been granted by the High Court on condition that the decretal sum be deposited in escrow; the respondent did not comply. A consent recorded before the Court of Appeal on 3rd March 2025 required the respondent to secure the decretal sum with an insurance bond from CIC Insurance within 14 days. The respondent again failed, explaining that CIC Insurance did not offer the required bond, and sought variation to allow another insurer or a 25% deposit. The applicant sought rescission of the consent and liberty to execute. The Court framed a single issue: whether to vary or rescind the consent order. Applying settled authority that a consent order binds like a judgment and may only be impeached on grounds such as fraud or collusion, but noting that performance had become impossible since CIC does not offer the bond, and that both parties contributed to the impasse, the Court varied the consent: the respondent to provide a bond from another reputable insurer or, alternatively, a bank guarantee for the full decretal sum within 30 days, failing which the applicant may execute. Costs of the application abide the outcome of the appeal.

Key legal issues

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Whether the consent order of 3rd March 2025 requiring an insurance bond from CIC Insurance should be varied or rescinded

Holding

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.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 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. 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. 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. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.