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Court of AppealDismissedCivil Appeal (Kisumu)

Wasike v Wamboko (Civil Appeal 81 of 1984) [1985] KECA 149 (KLR)

Court of Appeal of Kenya
25 January 1985
AHA. R. W. HancoxJNJ. O. NyarangiHPH. G. Platt
2,517 words in judgment
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The bottom line

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The Court of Appeal confirmed that a consent judgment binds you like a contract and can only be challenged through review or a separate suit, not an appeal.

What this practically means

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Executive summary

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This Court of Appeal decision at Kisumu concerned an appeal by Flora N. Wasike against a consent judgment recorded by Gicheru J on 23 May 1984, under which she agreed to buy plot 533 Kibisi Settlement Scheme from Destimo Wamboko for Shs 150,000 or yield up vacant possession. Section 67(2) of the Civil Procedure Act provides that no appeal lies from a decree passed with the consent of the parties. Hancox JA, delivering the leading judgment, traced the settled law that a consent judgment has contractual effect and can only be set aside on grounds which would justify setting aside a contract, relying on Purcell v Trigell, Hirani v Kassam and Brooke Bond Liebig v Mallya. He declined to treat section 67(2) as an absolute bar where the existence of consent itself is disputed, but held that the proper course for an aggrieved party is an application for review or a separate suit, not an appeal. Finding no grounds on the record to displace the judgment - counsel having ostensible authority to compromise, and both parties having been represented when the consent was recorded - he would dismiss the appeal. Nyarangi Ag JA agreed in a separate judgment, expressing doubt that section 67(2) bars proof that a decree is invalid ab initio but concluding the appellant was a willing party attempting to resile on wrong grounds. Platt Ag JA dissented in a separate judgment, holding the appeal incompetent and liable to be struck out, with review in the High Court as the proper remedy. By majority the appeal was dismissed with costs. The decision below was not disturbed; the consent judgment stands.

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 decree passed with the consent of the parties under section 67(2) of the Civil Procedure Act
  2. 2.Whether the appellant consented to the consent judgment recorded by Gicheru J on 23 May 1984
  3. 3.If an appeal is not competent, by what means a party may challenge a consent judgment

Key legal issues

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01

Whether an appeal lies from a consent judgment under section 67(2) of the Civil Procedure Act

Holding

By majority, an appeal is not necessarily incompetent where the fact of consent is disputed, but the proper avenues for challenging a consent judgment are review or a separate suit; the consent judgment stands unless grounds justifying rescission of a contract are shown

Reasoning

Section 67(2) provides that no appeal lies from a decree passed with the consent of parties. Drawing on Hirani v Kassam and Brooke Bond Liebig v Mallya, the majority held a consent decree may be attacked on grounds of fraud, mistake, misrepresentation or any ground warranting rescission of a contract, but not on appeal; review under Order 44 rule 1 or a separate suit are the appropriate mechanisms, with the burden on the party challenging the judgment.

p. 3
02

Whether the appellant did consent to the consent judgment

Holding

The court found no grounds on the record to displace the consent judgment; the appellant was a ready and willing party and her advocate had ostensible authority to compromise the suit

Reasoning

Both parties were represented by advocates and the consent judgment was recorded in their presence; although the judge did not expressly record the parties' consent, the universal practice is to head a judgment as by consent only if it is. Waugh v H B Clifford & Sons establishes that counsel ordinarily has ostensible authority to compromise, so Mr Dhanjal's agreement bound the appellant.

p. 4
03

Nature of the appropriate remedy against a consent judgment

Holding

A consent judgment may be challenged either by an application for review in the suit itself or by a separate suit; the choice depends on the circumstances, including witnesses to be called and the grounds relied on

Reasoning

Law Ag P in Brooke Bond Liebig v Mallya permitted challenge in the suit itself by way of review, and did not rule out a separate suit. Hancox JA and Nyarangi Ag JA agreed that either method is possible and the choice depends on how the aggrieved party wishes to present the case and the nature of the order sought. Platt Ag JA would have struck out the appeal outright as incompetent.

p. 4

Legal principles established

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  • A consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled which are not carried out
  • No appeal shall lie from a decree passed by the court with the consent of parties; a party wishing to challenge a consent judgment must do so by review or by a separate suit
  • Section 67(2) of the Civil Procedure Act is not necessarily an absolute bar where the existence of consent itself is disputed

Court orders

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  1. 1.The appeal is ordered to be dismissed, with costs

The bench

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Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.

AH
majority

Wrote the judgment

Hancox JA held that while section 67(2) of the Civil Procedure Act bars appeals from consent decrees, it is not necessarily an absolute bar where consent itself is disputed; however, no grounds existed to set the consent judgment aside as a contract, and a party seeking to challenge a consent judgment should do so by review or a separate suit rather than appeal.

For may part, I am not wholly convinced that section 67 (2) is an absolute bar to an appeal in a case such as this onep. 4
JN
majority

Wrote the judgment

Nyarangi Ag JA agreed that section 67(2) should not be read as an absolute bar to challenging an invalid consent decree, that review under Order 44 rule 1 is available, and that on the facts the appellant was a willing party to the consent judgment; he would dismiss the appeal with costs.

I entertain considerable doubt if sub-section 2 of section 67 of the Act can reasonably be interpreted to act as an absolute bar to a party seeking to prove that a decree is invalid ab initiop. 5
HP
dissenting

Wrote the judgment

Platt Ag JA took the view that no appeal can lie from a consent judgment under section 67(2) of the Civil Procedure Act; the proper course was review in the High Court, and the appeal should therefore be struck out as incompetent with costs.

It is clear from section 67(2) of the Civil Procedure Act that no appeal can lie from a consent judgment. The proper course for the appellant to take is to set aside the consent judgment either by way of Review by the High Courtp. 6
On appeal from
High Court of Kenya (consent judgment recorded by Gicheru J, proceedings originating in the Resident Magistrate's Court at Kitale)
Jurisdiction invoked
Appeal under the Civil Procedure Act (Cap 21); competence governed by section 67(2)

Relief refused

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Setting aside of the consent judgment on appeal

No grounds exist which would justify setting aside the consent judgment as a contract; the appellant's remedy, if any, is by review or separate suit

p. 4

Costs

The appeal is ordered to be dismissed, with costs (to the respondent)

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.

It is now settled law that a consent judgment or order has contractual efiect and can only be set side on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out
p. 3Contractual effect of consent judgments
A court cannot interfere with a consent judgment except in such circumstances as would afiord good ground for varying or rescinding a contract between the parties.
p. 4Limits on interference with consent judgments (Brooke Bond Liebig v Mallya)
No appeal shall lie from a decree passed by the court with the consent of parties.
p. 5Statutory bar on appeals from consent decrees - section 67(2), Civil Procedure Act
In my view, either method is possible, and which is adopted must depend very much on the circumstances of the case, as to what witnesses have to be called, the nature of the grounds relied on for setting aside, and so on.
p. 4Review or separate suit as the means of challenging a consent judgment
For these reasons I would dismiss the appeal. As Nyarangi Ag JA is of the same opinion the appeal is ordered to be dismissed, with costs.
p. 4Final orders - disposition of the appeal by majority

Issues in the judgment

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minor

The final orders conflict in form: Hancox JA records the appeal as dismissed with costs by majority, while Platt Ag JA would have struck out the appeal as incompetent with costs to the applicant in the motion and to the respondent in the appeal; the majority disposition governs.

minor

The judgment repeatedly renders 'fi' as 'fi' errors (e.g. 'efiect', 'afiord'), and Platt Ag JA's motion to strike out the appeal by the respondent is noted but the formal outcome of that motion under the majority disposition is not separately stated.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (10)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wasike v Wamboko (Civil Appeal 81 of 1984) [1985] KECA 149 (KLR)", Case Analysis (1985). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/149/eng@1985-01-25

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