Hayer Bishan & Sons Ltd v Agwena (Environment and Land Appeal E002 of 2025) [2025] KEELC 4952 (KLR)
The bottom line
#The High Court in Kisumu ruled that a consent order must be varied by the trial court that recorded it, not the appeal court, and dismissed the company's extension request.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the appeal court over a consent order recorded in the trial court
The court lacks jurisdiction to review or vary the consent order because the appeal is against the judgment, not the consent order, and section 78 powers apply only to the subject matter of the appeal.
The court noted the appeal arises from the judgment of 13th January 2025, not the consent order of 16th April 2025. Section 78 powers (determining a case finally, remanding, framing issues, taking additional evidence, ordering a new trial) are exercisable only in respect of the subject matter of the appeal. The application was in substance a request to review the consent order recorded in the trial court file, which the appeal court was not being asked to exercise any of those powers to do.
Wrong statutory foundation for the application
Order 42 Rule 6 governs stay of execution pending appeal and was not the appropriate provision for enlarging time to comply with a consent order.
The motion was brought under Order 42 Rule 6 of the Civil Procedure Rules, but that provision deals with stay of execution pending appeal, not variation of a consent order or enlargement of time for compliance with one. The application therefore lacked a proper legal basis before the appellate court.
Merits of the application to vary/extend time under the consent order
The application was unmerited as it did not demonstrate grounds for varying a consent order; sickness of a director was argued but the consent had not been challenged.
The respondent argued that the consent was recorded after negotiations, provided for execution on default, could only be reviewed by the trial court, and had not been challenged; further, the applicant being a limited company, the illness of its director should not halt its operations. The court agreed the application failed to demonstrate grounds for varying a consent order and dismissed it.
Legal principles established
#- The powers of an appellate court under section 78 of the Civil Procedure Act are exercisable only in respect of the subject matter of the appeal, and a consent order not under appeal cannot be reviewed on that appeal.
- A party seeking to vary a consent order must approach the court that recorded the consent, and the appellate court is not the proper forum absent an explanation for not filing there.
Court orders
#- 1.The Notice of Motion dated 26th June 2025 is dismissed
- 2.Costs to the Respondent
- On appeal from
- Chief Magistrate's Court at Kisumu
- MCELC/E017/2023
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hayer Bishan & Sons Ltd v Agwena (Environment and Land Appeal E002 of 2025) [2025] KEELC 4952 (KLR)", Case Analysis (2025). Appeal number not stated in the ruling (arising from MCELC/E017/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4952/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.