Gateria v Embu County Government & 3 others; County Assembly of Embu & another (Interested Parties) (Constitutional Petition 5 of 2015) [2025] KEELRC 57 (KLR)
The bottom line
#A Kenyan court refused to let Embu County escape a settlement it signed, confirming that signed consent orders bind parties like contracts.
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 applicant has met the legal threshold for review and/or setting aside of a consent order recorded by the court
Key legal issues
#Whether the applicant demonstrated sufficient reason under Rule 33 of the ELRC Procedure Rules 2016 to review/set aside the consent order
The applicant failed to establish any sufficient reason; the consent was voluntarily entered into and is binding
The application was not based on discovery of new matter, mistake or error apparent on the record, so it had to succeed on 'any other sufficient reason'. A consent order stands on the same footing as a contract and can only be vacated on grounds that would vitiate a contract. The applicant alleged misrepresentation of the new County Secretary by counsel, but the court found the deponent to be a senior, educated officer presumed able to read and understand the affidavit she signed. No evidence of the alleged misleading, nor any action against the lawyer, was produced.
Whether the alleged misrepresentation and inadvertent mistake by the County Secretary vitiated the consent
The claim of being misled was rejected as an afterthought or an admission of negligence
The County Secretary swore the supporting affidavit that led to the consent, undertaking to liquidate the whole decree from public funds. Being a senior officer whose qualifications are prescribed under section 44 of the County Governments Act, she could not claim ignorance of obvious court documents. She adopted the contents of her affidavit, and setting aside the consent would prejudice the Petitioner who suspended execution in reliance on the undertaking.
Legal principles established
#- A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside
Court orders
#- 1.The application dated 18th September 2024 is dismissed
- 2.Costs of the application awarded to the Petitioner
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- ELRC Procedure Rules 2016, Rule 33 (review), on a Notice of Motion under Sections 1A, 1B, 3, 3A and 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Relief refused
#Setting aside/review of the consent order/judgment entered on 28th July 2023
No sufficient reason demonstrated; no proof of misrepresentation, mistake or any ground vitiating a contract; the County Secretary's explanation was an afterthought or negligence
Costs of the application
Application dismissed with costs to the Petitioner
Costs
Application dismissed with costs to the Petitioner.
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.
In the end, I dismiss the application dated 18th September 2024 with costs to the Petitioner.
It is now well settled law that a consent judgment or order has contractual efiect and can only be set aside on grounds which would justify setting a contract aside
Having found that the County Secretary was literate enough to understand what she was signing, and that both parties voluntarily signed the consent order, I must hold that the same is binding upon the parties.
I am not satisfied by the explanation given by the 1st respondent’s County Secretary that she was misled by the lawyer on such obvious court documents.
Issues in the judgment
#The judgment inconsistently dates the consent order as entered on 28th July 2023 in one passage and 28th July 2024 in another, while also stating it was signed on 27th July 2023
Application is by the 1st Respondent (Embu County Government) but the court record also refers to the respondents' earlier motion of 22nd May 2023, blurring which side brought which application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gateria v Embu County Government & 3 others; County Assembly of Embu & another (Interested Parties) (Constitutional Petition 5 of 2015) [2025] KEELRC 57 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/57/eng@2025-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.