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Court of AppealDismissedCivil Appeal No 60 of 1983

MUNYIRI vs NDUNGUYA [1985] KECA 125 (KLR)

Court of Appeal
24 May 1985
PLPlattNYNyarangiGAGachuhi
803 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal a consent order—you must seek review, bring a fresh suit, or get the other side's agreement to change it.

What this practically means

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Executive summary

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The appellant, the defendant in the High Court suit, appealed against a consent order recorded by VV Patel J on May 31, 1983 in the presence of both advocates, by which the case was marked settled upon payment by the plaintiff of Kshs 25,000 to the defendant in monthly instalments of Kshs 3,000, with costs orders set aside and no order for costs, and the land registrar directed to remove the defendant's caution on land parcel Mwerua/Mukure/28. The appellant alleged that no consent had been reached between the parties or their advocates, that the judge ought to have entered judgment or dismissed the suit, that a valuation report had not been taken into account, that judgment should have been entered in terms of an award, and raised the question of an eviction order. The appeal had previously commenced before another bench of the Court of Appeal and was considered de novo by this bench. Platt Ag JA, delivering the judgment of the court, held that section 67(2) of the Civil Procedure Act (cap 21) provides no appeal from a consent order, applying the court's interpretation in Flora Wasike v Destimo Wamboko. The order on its face was a perfectly intelligible consent order entered in the presence of the parties' advocates. Relying on Brooke Bond Liebig Ltd v Mallya and Hirani v Kassam, the court held that a consent judgment can only be interfered with on grounds that would justify varying or rescinding a contract, that there was no possibility of going behind the record, and that the parties' remedies lay in review or a fresh suit. The court recommended that advocates or parties present sign consent orders to prevent later recanting. Nyarangi JA and Gachuhi Ag JA agreed. The appeal was dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an appeal lies against a consent order recorded under section 67(2) of the Civil Procedure Act
  2. 2.Whether consent was actually reached between the parties or their advocates
  3. 3.Whether the court could go behind the consent order to consider the parties' rival claims, including the valuation report and the eviction order

Key legal issues

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01

Appealability of consent orders

Holding

The consent order recorded on May 31, 1983 is a detailed consent order from which section 67(2) of the Civil Procedure Act provides no appeal; the appeal must fail.

Reasoning

The court relied on its prior interpretation of section 67(2) in Flora Wasike v Destimo Wamboko. The order was entered in the presence of advocates for the parties and was, on its face, a perfectly intelligible consent order covering each paragraph. The suggestion that the order might have omitted the phrase 'by consent of the parties' or was difficult to interpret did not avail the appellant, and no appeal lies from such an order.

p. 2
02

Going behind a consent order

Holding

The court cannot go behind the record of the consent order to arbitrate between the parties' rival claims; the proper remedies are review or a fresh suit, applying Brooke Bond Liebig v Mallya and Hirani v Kassam.

Reasoning

Following Brooke Bond Liebig Ltd v Mallya, which in turn followed Hirani v Kassam, a consent judgment can only be interfered with on grounds that would justify varying or rescinding a contract between the parties. The affidavits ordered by the previous bench illustrated the futility of arbitrating the rival claims at that stage, so the appellant's allegations of absence of consent could not be entertained.

p. 2

Legal principles established

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  • No appeal lies against a consent order entered under section 67(2) of the Civil Procedure Act, and a consent judgment can only be interfered with on grounds that would justify varying or rescinding a contract
  • A party who wishes to resile from a consent order may only do so by consent, or must seek review or bring a fresh suit
  • Practice recommendation: advocates or parties present should sign consent orders to evidence agreement and avoid later recanting

Court orders

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  1. 1.The appeal is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PL
majority

Wrote the judgment

NY
majority
GA
majority
On appeal from
High Court at Nyeri
Civil Case No 7 of 1971
Jurisdiction invoked
Appeal from the High Court; barred by section 67(2) of the Civil Procedure Act (cap 21) as regards consent orders

Relief refused

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Setting aside of or appeal against the consent order of May 31, 1983

Section 67(2) of the Civil Procedure Act provides no appeal from a consent order, and no basis exists to go behind the record; the parties' remedies lie in review or a fresh suit

p. 2

Costs

The appeal is dismissed with costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

I would dismiss the appeal with costs, in accordance with section 67(2) of the Civil Procedure Act (cap 21).
p. 3final orders - dismissal of appeal
A court cannot interfere with a consent judgment except in such circumstances as would afford good ground for varying or rescinding a contract between the parties.
p. 2test for interfering with consent judgments
In the circumstances of this case, there is no possibility of going behind the record.
p. 2finality of consent orders on the record
Indeed, if the parties wish to resile, they can always do so, by consent.
p. 3resiling from consent orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "MUNYIRI vs NDUNGUYA [1985] KECA 125 (KLR)", Case Analysis (1985). Civil Appeal No 60 of 1983. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/125/eng@1985-05-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.