Housing Finance Company of Kenya Limited & another v Hirji (Sued as attorney for Firoze Nurali Hirji); Hirji (Applicant)
The bottom line
#A non-party cannot challenge a court consent order unless fraud or collusion is proven.
What this practically means
#The Supreme Court dismissed an application by Firoze Nurali Hirji to set aside a consent order that settled a case between Housing Finance Company and others. The court ruled that Hirji was not a party to the original proceedings and had no legal standing to challenge the order. A consent order can only be set aside if it was obtained through fraud, collusion, or if the court lacked material facts. Hirji did not prove any of these grounds, so the order stands.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the consent order dated 10th September 2020 and adopted by this Court on 25th September 2020 should be set aside on grounds that the Applicant was not consulted and that the Court lacked jurisdiction.
- 2.Whether the Applicant, who was not a party to the proceedings, has locus standi to bring this application.
- 3.Whether the Petition of Appeal No. 46 of 2019 should be struck out for want of jurisdiction.
Key legal issues
#Whether a non-party to proceedings can challenge a consent order adopted by the court.
A non-party cannot challenge a consent order unless they demonstrate that the consent was obtained by fraud, collusion, or other grounds that would vitiate an agreement.
The court found that the Applicant was not a party to the proceedings at the High Court, Court of Appeal, or Supreme Court. The consent order was entered into by the actual parties to the suit. The Applicant did not allege or prove any of the recognized grounds for setting aside a consent order, such as fraud or collusion. Therefore, he lacked standing to challenge it.
Whether the Supreme Court had jurisdiction to adopt the consent order despite the Applicant's challenge to the underlying power of attorney.
The court declined to revisit the issue of jurisdiction, as it had already determined in a previous ruling that it lacked jurisdiction to make factual findings on the validity of the power of attorney. The consent order was a compromise between the proper parties, and the court had jurisdiction to adopt it as an order.
The court noted that its 5-bench decision of 4th September 2020 had declined to determine the issue of representation for want of jurisdiction. The parties then entered into a consent to settle the matter. The Applicant's challenge to the power of attorney raised a factual dispute that could not be resolved by the Supreme Court. The court adopted the consent as an order, which was within its procedural authority.
Legal principles established
#- A consent order is binding on all parties and cannot be set aside unless fraud, collusion, or lack of material facts is proven.
- A non-party to proceedings lacks standing to challenge a consent order unless they show it was vitiated by fraud or collusion.
- The Supreme Court cannot make factual findings on issues like the validity of a power of attorney, as it lacks jurisdiction.
- A court has procedural authority to adopt a consent order entered into by the proper parties to a case.
Court orders
#- 1.The Notice of Motion dated 1st October 2020 and filed on 13th October 2020 is hereby dismissed.
- 2.The Applicant shall bear the costs of the application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Supreme Court of Kenya
- Petition of Appeal No. 46 of 2019
- Jurisdiction invoked
- Not explicitly stated; application to set aside consent order adopted by the Supreme Court
Relief refused
#Interim stay of enforcement of the consent order dated 10th September 2020
Application dismissed in its entirety; no merit found.
Setting aside of the consent order dated 10th September 2020
Applicant not a party and did not prove fraud, collusion, or other grounds to vitiate a consent order.
Striking out of Petition of Appeal No. 46 of 2019 for want of jurisdiction
Court declined to revisit jurisdiction issue; parties had already compromised the matter by consent.
Lifting of stay of execution of the Court of Appeal's Judgment
Application dismissed in its entirety.
Costs
The Applicant shall bear the costs of the application.
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.
We are therefore unable to find merit in his application and move to dismiss it, and consequently make the following orders: (i) The Notice of Motion dated 1st October 2020 and filed on 13th October 2020 is hereby dismissed. (ii) The Applicant shall bear the costs of the application.
A consent order entered into by counsel is binding on all parties to the proceedings and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by an agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorance of such facts in general for a reason which would enable the court to set aside an agreement.
The Applicant is neither a party to previous related proceedings before this Court, and even then, he has not shown that the consent was based on fraud, collusion or by an agreement contrary to the policy of the Court given without sufficient material facts or in misapprehension or ignorance of such facts
Key timeline
#Practical implications
#Consent orders are nearly ironclad
When advising clients, emphasize that consent orders are binding and can only be challenged on narrow grounds: fraud, collusion, or lack of material facts. Non-parties have no standing unless they prove these grounds. Ensure all parties are properly represented before entering a consent to avoid future disputes.
Settle disputes with finality
If your business enters a consent order to resolve a legal dispute, it is final and binding. Third parties cannot easily overturn it. This ruling protects settlements from being reopened by outsiders, giving you certainty. Always ensure your legal counsel confirms all relevant parties are included in the consent.
You cannot challenge others' settlements
If you are not a party to a court case, you generally cannot challenge a consent order that settles it. For example, if someone else's property dispute is resolved by consent, you cannot step in later to object unless you can prove fraud or collusion. This protects the finality of court decisions.
Frequently asked questions
#Can a non-party challenge a consent order in Kenya?+
No, a non-party generally cannot challenge a consent order unless they prove it was obtained through fraud, collusion, or without full disclosure of material facts. The Supreme Court in Firoze Nurali Hirji v Housing Finance Company Kenya Limited confirmed this principle.
What grounds can set aside a consent order in Kenya?+
A consent order can only be set aside if it was obtained by fraud or collusion, or if it was contrary to court policy, or if consent was given without sufficient material facts or in ignorance of such facts. These are the only recognized grounds under Kenyan law.
What is locus standi in Kenyan courts?+
Locus standi means the legal right to bring a case or challenge a court order. In this case, the Supreme Court ruled that Firoze Nurali Hirji lacked locus standi because he was not a party to the original proceedings and did not prove fraud or collusion.
Can the Supreme Court of Kenya decide on power of attorney validity?+
No, the Supreme Court lacks jurisdiction to make factual findings on issues like the validity of a power of attorney. In this case, the court declined to revisit the issue, as it had already ruled it could not determine factual disputes.
Cite this brief
#Cite this brief
Caselaw, "Housing Finance Company of Kenya Limited & another v Hirji (Sued as attorney for Firoze Nurali Hirji); Hirji (Applicant)", Case Analysis (2021). Petition (Application) 46 of 2019. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2021/71/eng@2021-03-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.