Nalianya v Tubei & 3 others (Environment and Land Appeal E060 of 2025) [2026] KEELC 5180 (KLR)
The bottom line
#The Environment and Land Court upheld a costs settlement of Kshs. 102,000 agreed by a client's advocate, ruling that dissatisfied clients can't escape consent orders without proving fraud.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the consent settling the respondents’ costs at KShs. 102,000 was liable to be set aside
- 2.whether the learned magistrate failed to address the alleged alteration and exaggeration of the execution documents
- 3.whether the ruling was contradictory
- 4.what orders should issue on the appeal and costs
Key legal issues
#Validity of the consent settling costs at Kshs. 102,000
The consent was validly entered by an advocate properly on record; the appellant's assertion of lack of personal input, without more, is not a ground for setting it aside
A litigant who appoints an advocate holds that advocate out as having authority to conduct and compromise the litigation. The appellant produced no correspondence limiting his advocate's authority, no affidavit from the former advocate, and no proof of fraud, collusion or mistake. His dissatisfaction with the compromise could not impeach the consent.
Alleged alteration and exaggeration of execution documents
The alleged handwritten alteration was not proved or connected to the consent; but the notice to show cause for Kshs. 208,000 was unsupported and was properly dismissed
The appellant did not identify the altered entry, its original content, who made it or its effect. The trial court properly distinguished the valid consent from the defective execution process, nullifying the notice to show cause demanding more than twice the consent sum while preserving the consent.
Whether the ruling was contradictory
No contradiction: the magistrate found the notice to show cause exaggerated but the application to displace the consent unmeritorious; the two findings addressed different questions and could coexist
The first conclusion concerned whether the consent was liable to be set aside; the second whether the notice demanding Kshs. 208,000 could be sustained. The appellant's argument arose from reading one part of the ruling outside its context.
Costs of the application
The order that the appellant bear the costs of the application was a proper exercise of discretion under section 27 of the Civil Procedure Act, as his principal relief failed
Costs follow the event and an appellate court will not interfere absent a wrong principle, irrelevant consideration, failure to consider a relevant matter, or plain injustice. The appellant's application to displace the consent was dismissed.
Legal principles established
#- A consent judgment or order has contractual effect and may only be set aside on grounds that would justify the setting aside of a contract, such as fraud, collusion, mistake or misrepresentation
- An advocate properly retained has general authority to compromise proceedings unless the limitation of that authority is known to the opposite party
- Fraud must be specifically pleaded and strictly proved, though not beyond reasonable doubt
- A defect in a subsequent notice to show cause does not, without more, invalidate the earlier consent on costs
Court orders
#- 1.The appeal is dismissed
- 2.The ruling and orders of the trial court delivered on 18th June 2025 in Kakamega MCELC No. E103 of 2022 are upheld
- 3.The consent on costs for Kshs. 102,000 remains binding, but the notice to show cause dated 14th April 2025 for Kshs. 208,000 remains dismissed; any fresh execution process shall be based on a transparent computation of the consent sum, less payments proved, together only with such further sums as are lawfully recoverable and specifically itemised
- 4.The interim order of status quo issued on 3rd July 2025 is discharged
- 5.The respondents shall have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court, Kakamega
- MCELC No. E103 of 2022
- Jurisdiction invoked
- First appeal from the magistrates' court (trial court ruling of 18th June 2025)
Relief refused
#Setting aside of the ruling of 18th June 2025 and the consent on costs of Kshs. 102,000
The appellant failed to establish fraud, collusion, mistake or misrepresentation, or any limitation of his advocate's authority known to the opposite party
Striking out of the bill of costs
The consent had compromised the bill; individual items ceased to be open to taxation
Costs
The respondents shall have the costs of this appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The appeal is dismissed.
The ruling and orders of the trial court delivered on 18th June 2025 in Kakamega MCELC No. E103 of 2022 are upheld.
the consent on costs for Kshs. 102,000 remains binding, but the notice to show cause dated 14th April 2025 for Kshs. 208,000 remains dismissed.
A consent judgment or order has contractual effect. It is binding upon the parties and may only be varied or set aside on grounds that would justify the setting aside of a contract
Any fresh notice to show cause must disclose a clear and verifiable computation.
Issues in the judgment
#The delivery date printed on the judgment (July 2026) predates no other event but is nearly a year after the interim order of 3rd July 2025 and the memorandum of appeal of 30th June 2025; the year 2026 may be a typographical error for 2025
The respondents' names are not stated in the extract; they are described only by their role as defendants in the trial suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nalianya v Tubei & 3 others (Environment and Land Appeal E060 of 2025) [2026] KEELC 5180 (KLR)", Case Analysis (2026). Appeal from Kakamega MCELC No. E103 of 2022 (memorandum of appeal dated 30th June 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5180/eng@2026-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.