Kemama & another (Suing as Personal Representative of the Estate of Amadeo Raymond Kemama - Deceased) v Guangxi Hydroelectric Construction Bureau Kenya Ltd (Environment and Land Case E001 of 2024) [2026] KEELC 4323 (KLR)
The bottom line
#The High Court in Meru confirmed that once parties record a consent order in Kenya, it is binding and can only be undone by proving fraud, misrepresentation, mistake, or similar serious grounds.
What this practically means
#Executive summary
#Key legal issues
#Res judicata
The plea failed because no previous application for setting aside or review of the consent was ever entertained by the court; the 28.05.2026 proceedings only concerned non-payment of thrown away costs
The court found as a matter of record that on 28.05.2026 counsel merely pointed out non-payment of thrown away costs, which was settled upon proof of payment. There were no arguments on setting aside the consent, so no former suit or issue was heard and finally determined, an essential ingredient of Section 7 res judicata.
Want of express instructions / counsel acting in contravention of instructions
Rejected; paragraphs 22 and 24 of the replying affidavit showed the Applicants were amenable to setting aside, subject only to a condition (escrow deposit), and counsel acted within implied authority
The court read the referenced affidavit paragraphs as granting express authority to concede the setting aside application, with only a condition attached. It also held an advocate has implied authority to do what is reasonable and lawful, including affording the respondent a hearing under Article 50(1). Thus counsel did not act contrary to instructions.
Lack of knowledge of material facts
Rejected; the Applicants bore the burden of proof and made only vague, omnibus, unsubstantiated allegations, and holding brief presupposes sufficient instruction on the facts
The court held that the counsel holding brief for Mr. Ombati was by that very fact sufficiently instructed and appraised of the facts. The Applicants failed to identify which material facts were unknown to the erstwhile advocate, and mere unawareness of material facts does not amount to misrepresentation or mistake sufficient to impugn a consent.
Availability of reliefs
The reliefs were untenable because the consent had been consummated by filing of a defence and payment of thrown away costs, and no judgment can subsist alongside a standing statement of defence
The court found that allowing the application would produce an absurdity: an exparte judgment cannot coexist with a statement of defence lawfully filed pursuant to the consent. The defence could only be removed via relief never sought, and inherent jurisdiction could not cure a failure in pleadings.
Legal principles established
#- A consent order or judgment can only be set aside on grounds similar to those warranting setting aside a contract: fraud, misrepresentation, deceit, mistake going to the root, or if immoral and contrary to public policy
- An order made in the presence and with the consent of counsel is binding and cannot be varied or discharged unless obtained by fraud or collusion, by agreement contrary to policy of the court, or where consent was given without sufficient material facts
- Inherent jurisdiction of the court cannot be invoked where there is a specific statutory provision to meet the case
- A court can only grant a relief or prayer which has been expressly sought
- The elements of res judicata under Section 7 of the Civil Procedure Act must all be satisfied conjunctively
Court orders
#- 1.The Application dated 11.06.2026 be and is hereby Dismissed.
- 2.Each party shall bear own costs of the application.
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); Order 25 Rule 5 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Articles 159 and 168 of the Constitution, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kemama & another (Suing as Personal Representative of the Estate of Amadeo Raymond Kemama - Deceased) v Guangxi Hydroelectric Construction Bureau Kenya Ltd (Environment and Land Case E001 of 2024) [2026] KEELC 4323 (KLR)", Case Analysis (2026). Not stated in judgment (Notice of Motion dated 11.06.2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4323/eng@2026-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.